Shaw v. Postal Tel. Cable Co.

• Decision Date: 20 January 1902
• Citation: 31 So. 222,79 Miss. 670
• Parties: WALTER K. SHAW v. POSTAL TELEGRAPH & CABLE COMPANY
• Court: Mississippi Supreme Court

31 So. 222

79 Miss. 670

WALTER K. SHAW v. POSTAL TELEGRAPH & CABLE COMPANY

Supreme Court of Mississippi

January 20, 1902

FROM the circuit court of Marshall county. HON. Z. M. STEPHENS Judge.

Shaw appellant, was plaintiff in court below; the Telegraph Company was defendant there. The facts are fully stated in the opinion of the court.

The case was first decided at the March term, 1900, but a reargument was granted, and the judgment of reversal then entered vacated, and the cause was continued. The opinion of the court, delivered by Woods, C. J., at the March term 1900, the one recalled, to which reference is made in the dissenting opinion of Whitfield, C. J., was as follows:

"It is much to be regretted that the opinion of the court in this case, by reason of the necessity for its immediate preparation by its writer, must be confined to a general statement of the views which are held by us.

"By sec. 195 of our present constitution telegraph companies are declared to be common carriers in their line of business, and subject to liability as such. On the case presented by the record before us, we are of opinion that the stipulations of the Telegraph Company limiting its liability in the transmission of messages by it is in purpose and effect an attempt by the company to limit its liability for negligence and to guard against the consequences of its negligence, and is, under our law, and the public policy of this state invalid.

"Regarding and treating this as an action for the wrong done by the company to the appellant by its breach of its duty to transmit his message correctly, and the substitution therefor of another and a false one, and in view of the knowledge of the company of the nature of appellant's business, and of its custom to receive and transmit his cipher messages in the transaction of his business, we are of opinion that the company is liable to the full extent of the injury suffered by the appellant for its breach of duty in the transmission of the cipher message.

"The authorities in harmony with, as well as those opposed to our views, will be found carefully collected in the briefs of the respective counsel.

"The action of the court below on the pleadings, as well as its judgment finally, must be overruled and reversed.

Reversed and remanded.

Affirmed.

Tim E. Cooper, for appellant.

The single question upon which a reargument has been directed, is whether a certain stipulation printed on the back of the telegraph blank on which the message was written is and was a legal limitation of the liability of the company. The provision of this limitation was, that the company should not be liable for mistakes or delays in the transmission or delivery of an unrepeated message, beyond the amount received for sending the same.

Under the decisions of the supreme court of Massachusetts such limitation is held to be reasonable and legal, and it is admitted by the appellant that if suit had been brought in the courts of Massachusetts, no recovery could be had beyond the price paid for sending the message. The question upon which the court has invited reargument is whether the plaintiffs' right of action is controlled by the laws of Massachusetts, in which state the contract for the transmission of the message was made.

The following propositions are settled by the decision at the former term, and, as I understand, the court does not desire reargument as to these: (1) That the telegraph company is liable for the erroneous transmission of a cipher message; (2) that the damages sued for are such as may be recovered; (3) that at the common law the stipulation for exemption from liability by the telegraph company is unreasonable and invalid, because it is a stipulation to exempt the company from liability for its own negligence. Adhering to these propositions as decided, the inquiry of the court, as I understand it, is whether the law of Massachusetts recognizes the stipulation as valid and legal, and whether that law is to control because the contract was made in that state. The reply to the question thus propounded by the court is, that under the law of Massachusetts the stipulation for exemption is invalid and illegal, although under the decisions of the supreme court of that state it would be held to be reasonable and valid. In other words, my proposition is that the law of Massachusetts is one thing, the decisions of its supreme court is another; and that those decisions do not correctly decide what the law of that state is. The decisions of the supreme court of Massachusetts do not rest upon any statute. The only statute of that state having relation to telegraph companies is as follows: "Every company shall receive dispatches from and for other telegraph companies and associations, and from and for any persons, and on payment of the usual charges for transmitting dispatches, according to the regulations of the company, shall transmit the same faithfully and impartially." This statute means such regulations of the company as are "reasonable and proper," as has been held by the courts of that state. Ellis v. Telegraph Company, 13 Allen, 235.

The supreme court of Massachusetts, in the cases cited by counsel for the appellee, has held, in accordance with the views expressed by some other courts, that a regulation by the telegraph company for exemption from injury resulting from ordinary negligence, is valid at the common law. It is not held that the statute makes valid such stipulation, but that they are valid at common law. The supreme court of Mississippi has uniformly held that no common carrier, and no corporation exercising callings or engaged in business from which arise duties to serve the public, can stipulate or contract for exemption from the consequences of its own negligence, whether the degree of negligence be what is called slight or gross. In this case this proposition remains so decided, and the court has not invited its reargument.

It is not true that the decision of a court makes the common law except as to those matters which are of local concern, and which become by a settled course of decision rules of property in the several states, or become rules of settled local policy. The supreme court of this state, and the supreme court of Massachusetts, in determining precisely the same question, have reached diametrically opposite conclusions on a matter determinable, not by Massachusetts statutes, but by the general commercial or common law of the country. The Massachusetts courts say that at common law a telegraph company may stipulate for exemption from liability for its own negligence. The supreme court of Mississippi holds that such stipulations are unreasonable and illegal.

The question is, whose judgment is to control, in a suit pending in this court, and to be by it decided? Both decisions cannot be right. If the Massachusetts court has rightly decided, this court ought to follow such decision, not because it is the decision of the state in which the contract is made, but because it is correct. But if this court has rightly decided, the Massachusetts court has wrongly decided, and the single question is whether the supreme court of this state shall follow an erroneous decision of the supreme court of another state, simply because the question arises in a case in which the contract which has been breached was there made. It is admitted by counsel for the appellee that if the federal court, sitting in the state of Massachusetts, entertained the view which this court holds, such federal court, if the plaintiff had sued therein, would have awarded a recovery, notwithstanding the fact that the Massachusetts courts would hold the stipulation for exemption valid.

If this concession correctly states the law, it would seem to end the controversy. But since the court cannot accept the admission of counsel as the law of the case, I shall attempt to show by authorities that the rule is correctly stated by me and conceded by counsel.

There are some matters as to which the decisions of state courts in a sense make the common law of their states, and as to which other courts, without regard to their own views, will accept such decisions as conclusive. Among such instances the following may be stated:

1. The extent and character of the powers which its various political and municipal organizations shall possess. Claiborne Co. v. Brooks, 111 U.S. 400.

2. The construction of its statutes and constitution as shown by a settled course of decision. Leffingwell v. Warren, 2 Black, 599; Luther v. Borden, 7 Hum., 1; Post v. Supervisors, 105 U.S. 667.

3. Those rules declared by the local tribunals which relate to rights and titles to things having a permanent locality, such as rights and titles to real estate and other matters immovable and intraterritorial in their nature. Swift v. Tyson, 16 Peters, 1.

4. Rules governing the descent, transfer, or sale of property. Bucher v. Cheshire R. R. Co., 125 U.S. 555.

5. Rules and law of evidence in actions at law. Ex parte Fisk, 113 U.S. 713; Nitcor v. Hurt, 13 Pet., 378; Ryan v. Bindley, 1 Wall., 66.

6. Local usages and customs having the form of laws. Bonen v. Neivel, 1 Z. N.Y. 290; Bank v. Shaw, 61 N.Y. 283.

7. Modifications of the common law made necessary by the situation and local conditions existing in the several states. V. & J. R. R. Co. v. Patton, 31 Miss. 156; Green v. Weller, 32 Miss. 650; Crane v. French, 38 Miss. 503.

Clearly the present controversy is not in reference to a matter local in its nature, within any of the tests just stated.

I shall now attempt to show by authority that the question involved is one of general law, which each court must decide for itself, and that the decisions of the Massachusetts courts are not of...