Western Union Telegraph Co. v. Czizek

• Decision Date: 12 February 1923
• Docket Number: 3885.
• Citation: 286 F. 478
• Parties: WESTERN UNION TELEGRAPH CO. v. CZIZEK.
• Court: U.S. Court of Appeals — Ninth Circuit

286 F. 478

WESTERN UNION TELEGRAPH CO. v. CZIZEK.

No. 3885.

United States Court of Appeals, Ninth Circuit.

February 12, 1923

Beverly L. Hodghead, of San Francisco, Cal., and Richards & Haga, of Boise, Idaho (Francis R. Stark, of New York City, of counsel), for plaintiff in error.

Richard H. Johnson and Carey H. Nixon, both of Boise, Idaho, for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is the second appeal. The facts of the case are adequately set forth in the opinion rendered when it was first here, and it is unnecessary to repeat them. Under stipulation of counsel entered at the trial in the District Court, it was agreed that the testimony taken on the former trial should be considered to have been taken in the present cause, to the same extent as though the witnesses were produced, subject however, to all legal objections shown by the record on the former trial; and that, in addition to such testimony, the evidence should be confined to the testimony of G. H. Hackett and Mrs. Margaret Holland, and such evidence upon the value of the stock of the Idaho National Bank as might be produced by either party.

At the request of plaintiff in error, defendant below, the court made certain findings of fact and of law, which are in the record and will receive consideration later.

Since the Congress has accorded to the Interstate Commerce Commission administrative control of the regulation of rates to be charged by telegraph companies in prosecuting their business in sending and receiving messages, etc., for remuneration, it has become an established principle of law that, by reason of the telegraph companies' authority to establish reasonable rates, they likewise possess the primary authority to provide rates for unrepeated messages, and the right to fix a reasonable limitation of responsibility where such rates are charged. Postal Tel.-Cable Co. v. Warren-Godwin Co., 251 U.S 27, 40 Sup.Ct. 69, 64 L.Ed. 118.

So it is that the sender of an unrepeated message at the lower rate cannot escape the attendant limitation of liability. Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 41 Sup.Ct. 584, 65 L.Ed. 1094.

It is now strenuously urged that the principle is applicable here, and, being so applicable, is preclusive of plaintiff's recovery. The very question, however, was determined to the contrary on the former appeal, and it was held that the present case was not controlled thereby, for reasons then stated. See Czizek v. Western Union Telegraph Co. (C.C.A.) 272 F. 223. That holding has now become what is termed the law of the case. It is controlling upon this appeal, and was controlling with the trial court. This doctrine has been so many times affirmed and reaffirmed that it is scarcely subject to controversy.

'It has been settled by the decisions of this court,' says the Supreme Court in Roberts v. Cooper, 20 How. 467, 481, 'that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless litigation.'

So the Court of Appeals, Eighth Circuit, in Burns v. Cooper, 153 F. 148, 151, 82 C.C.A. 300, 303, says:

'As the Circuit Court properly interpreted and followed our former opinion and mandate, that must end the controversy; for our former decision, like the final decision of every court which has jurisdiction of the matters and parties it judges, rendered every question which was actually determined upon that appeal, and every question which might have been then raised in opposition to the decision, res judicata between the parties to it as respects the claim or cause of action there litigated.'

To the same effect, see Messinger v. Anderson, from the Sixth Circuit, 171 F. 785, 96 C.C.A. 445, where Lurton, Circuit Judge, says:

'No other rule is conceivable having regard to the necessity of putting an end to litigation.'

See also, from this circuit, Mutual Life Ins. Co. v. Hill, 118 F. 708, 55 C.C.A. 536; Olsen v. North Pacific Lumber Co., 119 F. 77, 79, 55 C.C.A. 665; Montana Mining Co. v. St. Louis Min. & Mill Co., 147 F. 897, 78 C.C.A. 33; National Bank of Commerce v. United...