Western Union Telegraph Co. v. Showers

• Decision Date: 23 December 1916
• Docket Number: 18314
• Citation: 73 So. 276,112 Miss. 411
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. SHOWERS

73 So. 276

112 Miss. 411

WESTERN UNION TELEGRAPH CO. v. SHOWERS

No. 18314

Supreme Court of Mississippi

December 23, 1916

Division B

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Jr., Judge.

Suit by H. H. Showers against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. B Harris, for appellant.

Prior to the passage of the Act of Congress of June 18, 1910 Congress had not legislated or acted in any way in reference to interstate telegraphic communications although it had long been held that the interstate telegraphic business was interstate commerce.

In the case of the Western Union Telegraph Co. v. Texas, 105 U.S. 460, the supreme court of the United States said: "The telegraph company occupies the same relation to commerce as a carrier of messages that the railroad company does as the carrier of goods. Both companies are instruments of commerce, and their business is commerce itself."

The court is familiar with the numerous cases on this point. See: Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. l; Western Union Tel. Co. v. Pembleton, 122 U.S. 347; Leloup v. Port of Mobile, 127 U.S. 406; Western Union Tel. Co. v. Commercial Milling Co., 118 U.S. 406; Western Union Tel. Co. v. Crovo, 220 U.S. 304; Western Union Tel. Co. v. Brown, 234 U.S. 542.

In the case of Jones v. Express Co., 61 So. at page 165, the question before this court was the validity of a stipulation in an express receipt limiting the liability of the company to fifty dollars. The court cited the case of Express Co. v. Croniger, supra and the case of Railroad Co. v. Miller--U. S. 513, 27 Law Ed. page 323, holding that on interstate shipments the Act of Congress was exclusive of all state statutes or policies, and the decisions of that court were the supreme law in reference to contracts of similar import. See, also the cases of, Express Co. v. Burke & McGuire, 61 So. 312; Railroad Co. v. Woodruff, 62 So. 171.

In addition to the Federal cases above cited on the question as to the effect of the action by Congress, we cited the following cases: Northern Pac. R. R. v. Washington, 222 U.S. 307; So. Ry. Co. v. Reid, 22 U.S. 424; Mondou v. R. R. Co., 223 U.S. 1; in which the court held that the Federal Employers' Liability superseded all state regulations and all common-law rules laid down by the states on that subject. Chicago R. R. Co. v. Elevator Co., 226 U.S. 426; New York Central R. R. Co. v. Hudson Co., 227 U.S. 249; St. Louis R. R. Co. v. Edwards, 227 U.S. 265; Boston & Maine R. R. Co. v. New York, 233 U.S. 671.

These cases touch upon various subjects upon which Congress has acted and all hold that action by Congress preempts and occupies the entire field to the exclusion of all state regulations, statutes, policies, and common-law rules.

In the case of Western Union Tel. Co. v. Bilisoly, 116 Va. 562, it was held that by the Act of Congress, approved June 18, 1910, telegraph companies so far as interstate business is concerned have been placed under the direct supervision of the Interstate Commerce Commission and are subject so far as applicable to the same rules, regulations, restrictions and penalties as imposed upon common carriers. This act has occupied the entire field and taken complete control of the regulation of telegraph companies, and while it has impliedly exempted them from any penalty for negligence, it has provided a severe maximum penalty for intentional discrimination. Before the passage of this Act there had been no legislation by Congress affecting or conflicting with the state statute imposing a penalty for failure to deliver messages promptly, and therefore state statutes affecting telegraph companies were upheld even as to interstate messages upon the ground that until Congress had legislated upon the subject of telegraph companies the state statutes were applicable, citing the James Case, 126 U.S. 650; Commercial Milling Co. Case, 218 U.S. 406; Crovo Case, 220 U.S. 364, and others.

Further the court held, that even if the plaintiff's case was based on an unreasonable regulation, it is a question which cannot be determined primarily in the court. The question must be first raised before the Interstate Commerce Commission, citing Railroad Co. v. Abilene Cotton Co., 204 U.S. 426; 51 Law Ed., 553; Baltimore R. R. Co. v. U.S. 215 U.S. 481; 54 Law Ed., 292.

In the case of Gardner v. Western Union Tel Co., decided by the United States circuit court of appeals for the eighth circuit, reported in Advanced Sheets, 231 Fed., the court held that by virtue of the amendment of June 18, 1910, Congress had not only taken possession of the field of interstate commerce by telegram, but had also specifically prescribed rules which shall govern the transactions of such commerce. This case is an instructive one, and cites the Bilisoly case, above referred to, and numerous state cases bearing on the subject. See, Western Union Tel. Co. v. National Bank of Berryville, 83 S.E. 224.

This case followed the Bilisoly Case, supra. The case of Dodge v. Express Co., 54 Pa.Super. Ct., 222; Ridge v. Erie R. R. Co., 54 Pa, Super. Ct., 602, are both cases upholding the valuation clause in receipts and bills of lading. See, also, Strauss Gas and Oil Co. v. Tel. Co., 59 Pa.Super. Ct., 124.

In Western Union Tel. Co. v. Compton, 169 S.W. (Ark.), 946, the court upheld the valued message clause in the telegraph blank. Western Union Tel. Co. v. Johnson, 171 S.W. 859, and Western Union Tel. Co. v. Simpson, 174 S.W. (Ark.), 232, the court held that mental anguish could not be recovered on an interstate message.

It is the established rule in the Federal courts that the stipulation as to value is not a stipulation relieving the company from liability for negligence. In the case of Hart v. Pa. R. R. Co., 112 U.S. 276, 28 Law Ed., page 717, the court says: "The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence to that value. It is just and reasonable that such a contract, fairly entered into and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss."

This case was referred to with approval in the case of Express Co. v. Croninger, supra. See, also, the case of Boston & Maine Railroad Co. v. Hooker, 233 U.S. 671, 58 Law Ed. 875; R. R. Co. v. Harriman Bros., 227 U.S. 672, 57 Law Ed. 690; Chicago R. R. Co. v. Miller, 227 U.S. 57, Law Ed. 323.

The authorities above cited established beyond question, we submit the following propositions: First, that the stipulation as to the repeated and unrepeated messages has been expressly and specifically declared to be reasonable and authorized by express Act of Congress, and it is, therefore, not an open question for discussion by this court or any other.

Second, that the regulation or stipulation in regard to the valuation of the message is a reasonable regulation, and is binding and enforceable, although the act occasioning the loss is a negligent one, and here we desire to call the court's attention to the fact that it is immaterial whether the act is characterized as gross negligence, or simply negligence, because no distinction exists, and there are no degree of negligence in the Federal courts. See, Railroad Co. v. Arms, 91 U.S. 489, 23 Law Ed. 374, The New World v. King, 16 How. 469, 14 Law Ed. 1019; Kelly v. Marlot, 135 F. 74; Purple v. Union Pac., R. R. Co., 114 F. 123.

Third, in any event, the question of the reasonableness or unreasonableness of the stipulation is a matter for the determination of the Interstate Commerce Commission and cannot be raised in the first instance in the state of Federal courts.

See, Telegraph Co, v. Bank of Spencer, supra; Telegraph Co. v. Williams, supra; Haskell Implement & Seed Co. v. Tel. Co. supra (conclusion of opinion).

We have brought into view the authorities above cited, because they bear directly upon the question as to the correctness of the court's ruling in overruling the demurrer to the special pleas.

Cutrer & Johnston, for appellee.

It is true that Congress has undertaken to assume control of the regulations of contracts between telegraph companies and the public under the terms of the Carmack Amendment, as stated in the act of June 18, 1910, but it is also true that the defendant has not filed its rates and tariffs, rules and regulations, with the Interstate Commerce Commission. It is also true that the rules and regulations of the defendant are not binding upon the public, and certainly not upon the plaintiff unless they are filed with the Interstate Commerce Commission, as required by law.

It is also true that no regulations of the defendant limiting liability are binding, unless they are made binding under the provisions of the Carmack Amendment to the Interstate Commerce Act, which law alone undertakes to set out a measure of liability to cover contracts between...