Western Union Telegraph Co. v. Glover

• Decision Date: 13 January 1920
• Docket Number: 6 Div. 656
• Citation: 86 So. 154,17 Ala.App. 374
• Parties: WESTERN UNION TELEGRAPH CO. v. GLOVER.
• Court: Alabama Court of Appeals

86 So. 154

17 Ala.App. 374

WESTERN UNION TELEGRAPH CO. v. GLOVER.

6 Div. 656

Court of Appeals of Alabama

January 13, 1920

Rehearing Denied Feb. 10, 1920

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by James Glover against the Western Union Telegraph Company for breach of contract to deliver telegram. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Johnston & Cocke, of Birmingham, and Francis R. Stark, of New York City, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

SAMFORD, J.

The plaintiff bases his claim upon an alleged contract made with the defendant, whereby it is alleged that on November 14 1918, defendant accepted a message from plaintiff's agent, at Selma, Ala., to be delivered to plaintiff at Birmingham, Ala., for hire, which message the defendant failed to promptly deliver, thereby breaching the contract and causing damage, etc. To the complaint as filed, defendant filed a plea in abatement, setting up the fact that on July 16, 1918 (U.S.Comp.St.Ann.Supp.1919, § 3115 3/4x), by joint resolution, the United States Congress authorized and empowered the President of the United States, whenever he deemed it necessary for the national security or defense, to supervise or take possession and assume control of all wire lines, or any part thereof, and to operate the same in such manner as may be needful or desirable for the duration of the war, and setting out the proclamation of the President, under date of July 22, 1918, taking over all the telegraph lines in the United States, including defendant. This plea was demurred to, and demurrer sustained. While the plea was not subject to the grounds of demurrer interposed, it was not a good plea in abatement, and on motion should have been stricken, for reasons that will hereinafter appear.

The contract was made in Alabama for the transmission of a message from one point in Alabama to another point in Alabama, and, while it is not necessary to a decision of this case, we do not agree with the contention of appellant's counsel that, because defendant chose to transmit the message by way of a relay station in Atlanta, Ga., the contract thereby became subject to the federal law governing interstate transactions. In reaching this conclusion we are not unmindful of the decisions of other states relating to shipments of freight over railroads, whose lines diverge from the point of shipment into another state and return to the point of destination in the same state, and upon which decisions rests the authority for some courts of other states to hold that the same rule applies to telegraph lines, by reason of the Carmack Amendment, which amendment withdraws from the states the entire subject of the regulation of the interstate carriage of freight and passengers and vests it in the Interstate Commerce Commission. The amended act of June 18, 1910 (36 Stat. 539, c. 309), placed telegraph and telephone companies in the same category as railroads with this proviso:

"That the provisions of this act shall not apply *** to the transmission of messages by telephone, telegraph or cable wholly within one state and not transmitted to or from a foreign country from or to any state or territory as aforesaid."

Construing this proviso, the courts of Virginia, Kentucky, Missouri Oklahoma, North Carolina, and South Carolina have held that a message originating at a point in a state on a contract to deliver it to another point in the same state is interstate commerce, if in the transmission the wires of the transmitting company pass over or through another state. These authorities are collated in Bateman v. Western Union Telegraph Co., 174 N.C. 97, 93 S.E. 467 L.R.A.1918A, 803, and note, and seem to be uniform, with the exception of People v. Abramson, 208 N.Y. 138, 101 N.E. 849, and W.U. Tel. Co. v. Taylor, 57 Ind.App 93, 104 N.E. 771. If the law is, as declared by a majority of the opinions on the subject, then, a telegraph company, by having a relay office in Alabama for its Georgia business and a relay office in Georgia for its Alabama business, and so on throughout the union, could divest the states of all semblance of jurisdiction, relieve itself from the burdens of taxation, and "snap its fingers" at all state authority, and a farmer by crossing the bridge at Phoenix City, Ala., and recrossing it at Girard, one mile further down, could escape the jurisdiction of...