Meadows v. Postal Telegraph & Cable Co.

• Decision Date: 04 April 1917
• Docket Number: 182.
• Citation: 91 S.E. 1009,173 N.C. 240
• Parties: MEADOWS v. POSTAL TELEGRAPH & CABLE CO.
• Court: North Carolina Supreme Court

91 S.E. 1009

173 N.C. 240

MEADOWS v. POSTAL TELEGRAPH & CABLE CO.

No. 182.

Supreme Court of North Carolina

April 4, 1917

Appeal from Superior Court, Craven County; Lyon, Judge.

Action by J. A. Meadows against the Postal Telegraph & Cable Company. From a judgment for plaintiff, defendant appeals. Reversed.

Decisions of courts of state in conflict with Act Cong. June 18, 1910 subjecting interstate telegraph and telephone companies to rules and regulations of Interstate Commerce Act, are displaced by statute.

Plaintiff brought this action to recover damages for failure to transmit correctly and deliver the following telegram:

"J A. Meadows, Newbern, N.C. Bot ten May Corn 49 one eighth.

Gardner V. Va Ness."

The message was sent under the following contract, which was printed on one of the company's blanks:

"The Postal Telegraph Cable Company (Incorporated) transmits and delivers this message subject to the terms and conditions printed on the back of this blank. Send the following message, without repeating, subject to the terms and conditions printed on the back thereof, which are hereby agreed to.

The Postal Telegraph Cable Company (Incorporated) transmits and delivers the within message subject to the following terms and conditions: To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the message on the face hereof and the Postal Telegraph-Cable Company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same, nor for mistakes or for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of the company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz.: One per cent. for any distance not exceeding 1000 miles and two per cent. for any greater distance. No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of this company's messengers, he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery. This company shall not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission. This is an unrepeated message and is transmitted and delivered by request of the sender under the conditions named above. Errors can be guarded against only by repeating a message back to the sending station for comparison. The above terms and conditions shall be binding upon the receiver as well as the sender of this message. No employé of this company is authorized to vary the foregoing. The same being delivered to the defendant at its office in Chicago to be delivered to plaintiff at New Bern, N. C."

As delivered to plaintiffs in Newbern, the message read as follows:

"J. A. Meadows, Newbern, N.C. Bot ten May corn 48 one eighth.

Gardiner B. Vanness."

There was evidence of the plaintiff tending to show the above-stated facts, and also that plaintiffs bought the corn to fill an existing contract for the sale of meal, and that, while they made a profit on the meal transaction, they lost on the corn by reason of defendant's error in negligently transmitting the message. Defendant introduced no evidence. A preliminary motion was made in the superior court to dismiss on two grounds, but as the opinion of the court is with the defendant for another reason, this question is not considered.

The case originated in a justice's court, and was carried by appeal to the superior court, where the jury, under the evidence and the instructions of the court, returned the following verdict for the plaintiff:

"1. Did the defendant negligently fail to deliver the message sent to plaintiff by Gardiner B. Van Ness as alleged in complaint? Answer: Yes.

2. What damage, if any, is plaintiff entitled to recover? Answer: One hundred dollars."

Judgment for the plaintiff and appeal by defendant.

D. E. Henderson, of Newbern, for appellant.

Guion & Guion, of Newbern, for appellee.

WALKER, J. (after stating the facts as above).

Plaintiff introduced all the evidence showing the message and the contract as above stated. This and other state courts have held that the stipulation as to repeating messages for a higher charge is one restricting the liability of the defendant for negligence and is void, as being against public policy. Brown v. Telegraph Co., 111 N.C. 187, 16 S.E. 179, 17 L. R. A. 648, 32 Am. St. Rep. 793; Hendricks v. Telegraph Co., 126 N.C. 304, 35 S.E. 543, 78 Am. St. Rep. 658. Other courts, including the highest federal court, hold that such stipulations are valid 37 Cyc. 1684 et seq., where the principal cases are collected in the notes. Primrose v. Telegraph Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883. We have held that sender and sendee are both bound by the valid stipulations of the contract, as, for instance, the one prescribing the time for bringing suit for damages, limiting it to 60 days after receipt of the telegram or knowledge of its nondelivery. But since this court and others have adjudged the stipulation, as to repeating messages, to be invalid, a radical change has been wrought in the control and management of carriers, telegraphs, and telephone companies doing an interstate business and traversing more than one of the states. Congress passed the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), which is applicable to interstate railroads, and thereby materially changed the principles, upon which the liability of the employer to his employé, who is injured while at the time engaged in performing a duty in interstate commerce, is determined (Fleming v. Railroad Co., 160 N.C. 196, 76 S.E. 212; Lloyd v. Railroad Co., 166 N.C. 24, 81 S.E. 1003; Tilghman v. Railway Co., 167 N.C. 163, 83 S.E. 315, 1090 [on writ of error, S. A. L. Railway Co. v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069]; Railway Co. v. Renn, 241 U.S. 290, 36 S.Ct. 567, 60 L.Ed. 1006); and although an action is brought by the employé in the state court, the rule as to liability created by the act of Congress is the applicable one, in the trial of the case, except as to certain methods of practice and procedure (Fleming's Case, supra) in the local court. By an amendment to the "Act to regulate commerce" passed by Congress on June 18, 1910, interstate telegraph and telephone companies were made subject to the rules and regulations of that act, in the particulars set forth by the amendment, and, as the courts, who have since considered the question, have held, Congress has occupied the entire field of interstate commerce, or traffic, with respect to such companies, and especially with reference to the transmission of messages from one state to another. The amendment of 1910 reads as follows:

"All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: Provided, that messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages."

Before the passage of the amendment of 1910, there had been no legislation by Congress affecting or conflicting with state statutes and other laws respecting the liability of telegraph companies for negligence in transmitting and delivering interstate messages, and therefore the local rule of law prevailed and was controlling in fixing such liability. Telegraph Co. v. James, 162 U.S. 650, 16 S.Ct. 934 40 L.Ed. 1105; Commercial Milling Company Case, 218 U.S. 406, 31 S.Ct. 59, 54 L.Ed. 1088, 31 L. R. A. (N. S.) 220, 21 Ann. Cas. 815; Crovo Case, 220 U.S. 364, 31 S.Ct. 699, 55 L.Ed. 498. A neighboring state court, in reviewing the above cases and others, adopts the language of the court, by which they were decided and having final authority to declare the law upon the subject, and held, in substance, that where the state statute did not unfavorably affect or embarrass the telegraph company in the course of its employment, it would be held valid until Congress spoke on the subject. These decisions are based upon the fact that, at the time they were rendered, no congressional legislation existed on the subject. Such judicial utterances would mean nothing, unless they meant that when Congress did act, and undertake to regulate telegraph companies in the matter of the transmission and delivery of interstate messages, the statutes of the...