Western Union Telegraph Co. v. Bailey

• Decision Date: 02 July 1917
• Docket Number: (No. 9792.)
• Citation: 196 S.W. 516
• Parties: WESTERN UNION TELEGRAPH CO. v. BAILEY.
• Court: Texas Supreme Court

196 S.W. 516

WESTERN UNION TELEGRAPH CO. v. BAILEY.

(No. 9792.)

Supreme Court of Texas.

July 2, 1917.

Action by T. C. Bailey against the Western Union Telegraph Company. The court of Civil Appeals affirmed judgment for plaintiff (184 S. W. 519), and defendant brings error. Writ denied on rehearing.

See, also, 171 S. W. 839.

Chas. S. Todd, of Texarkana, and N. L. Lindsley, of Dallas (Albert T. Benedict, of New York City, of counsel), for plaintiff in error. Mahoffey & Keeney, of Texarkana, for defendant in error.

PHILLIPS, C. J.

The material question presented by the case, is, in substance, whether the legislation of Congress, subjecting telegraph companies engaged in interstate business to the Interstate Commerce Act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379) for certain purposes, has the effect of superseding all State laws as to the damages recoverable for a negligent failure to deliver an interstate message, and as to the right of such a company to stipulate for exemption of liability for its own negligence. We reviewed the question fully upon the original presentation of the petition for writ of error, and have again considered it in response to an urgent motion for rehearing, in support of which a great many authorities have been cited.

The message in the case was one sent from a point in Tennessee to a point in Texas. It was addressed to the plaintiff and advised him of the serious illness of a brother who died the day following. Because of the negligence of the company occurring in Texas, it was never delivered to the plaintiff, who did not learn of his brother's illness and death until his receipt of a letter some days after his burial. Upon the trial, damages were awarded the plaintiff for the mental distress suffered by him in consequence of the negligent failure to deliver the message, in accordance with the established rule in this State upon that subject. The judgment was affirmed by the Court of Civil Appeals for the Sixth District. 184 S. W. 519. The opinion of that court upon a former appeal, where the question involved was discussed in an elaborate and able opinion by Mr. Justice Hodges, is to be found in 171 S. W. 839. On the back of the telegraph blank used for transcribing the message at the sending office was a stipulation to the effect that the company should in no event be liable for any damages for the non-delivery of the message, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount, it was stated, the message was valued, in the absence of a statement thereon of a greater value when offered for transmission and the payment of, or an agreement to pay, an additional sum, based on such value, equal to one-tenth of one per cent thereof.

In the absence of legislation by Congress the right of a State to prescribe its own rules in respect to particular subjects of interstate commerce, which do not constitute a direct burden upon such commerce, is undoubted. Railway v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915E, 942; Telegraph Company v. Milling Company, 218 U. S. 406, 31 Sup. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815. While the measure of the damages recoverable for the breach of the contract for the non-delivery of the message in this case would be governed by the law of Tennessee, the place of the making of the contract, no evidence was adduced as to the law of that State upon the subject. It is therefore presumed to be similar to the law of this State. The correctness of the rule which in this State permits the recovery of damages for mental distress, and which allows such damages even in the instance of an interstate message where the negligence occurs in this State and such damages are recoverable under the law of the State from which the message is sent, furnishes no test of this immediate question. The real test of it is: Does the enforcement of such a rule constitute a direct burden upon interstate commerce? It cannot be said to impose any such burden. It is no more of a burden upon such commerce than is a penalty prescribed by a state for misconduct of an interstate carrier occurring within its borders, the lawfulness of which, in the absence of legislation by Congress upon the particular subject, has in different instances been repeatedly affirmed by the Supreme Court of the United States. Telegraph Company v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105; Railway Company v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853; Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. 627, 41 L. Ed. 1064; Railroad Company v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268.

The stipulation upon the back of the message, amounting in its effect to an attempt to exempt the company from the consequences of its own negligence, was void under the law both of this State and the State of Tennessee. Telegraph Company v. Neill, 57 Tex. 283, 44 Am. Rep. 589; Railway Company v. Smith, 123 Tenn. 678, 134 S. W. 866.

The legislation of Congress referred to is the Amendment of June 18, 1910, to the Interstate Commerce Act, Supp. 1912, Fed. Stat. Ann. 112. If this Amendment was an exertion by Congress of its authority over the subject of the liability of telegraph companies for the negligent non-delivery of interstate messages, including that of their right to provide by contract that they should be exempt from such liability, or if it clearly manifested a purpose on the part of Congress to extend its authority over those subjects, the rules of the State upon them are, of course, superseded. But we do not regard the Amendment as open to any such construction. It is not necessary to here set it out, but its examination reveals that it classifies telegraph companies doing an interstate business as common carriers within the meaning of the Act; requires that their charges shall be just and reasonable; prohibits every unjust and unreasonable charge; permits their classification of messages and the charging of different rates therefor; and, further, in section 15 as amended (Comp. St. 1916, § 8583), empowers the Interstate Commerce Commission to determine, after complaint made, whether their charges, regulations, or practices are unjust, unreasonable, discriminatory, or otherwise in violation of the Act, and, if it be of the opinion that they are, to prescribe those which are just, fair and reasonable. There is no mention of the liability of such companies for negligence. That subject is not dealt with or touched upon. If it had been the purpose of Congress to legislate upon it, we think it would have done so in terms clear and unmistakable. We are not required to assume that such was the intention...