Western Union Telegraph Co. v. Lee

• Decision Date: 23 February 1917
• Parties: WESTERN UNION TELEGRAPH CO. v. LEE.
• Court: Kentucky Court of Appeals

192 S.W. 70

174 Ky. 210

WESTERN UNION TELEGRAPH CO. v. LEE.

Court of Appeals of Kentucky.

February 23, 1917

Appeal from Circuit Court, Graves County.

Action by Robert E. Lee against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Robbins & Robbins, of Mayfield, Richards & Harris, of Louisville, and Albert T. Benedict, of New York City, for appellant.

Lafe S Pence and H. W. Rives, both of Lebanon, and Stanfield &amp Stanfield, of Mayfield, for appellee.

MILLER J.

Mike Lee and his family, including his son M. A. Lee, live near Lebanon. The appellee Robert E. Lee, who is another son of Mike Lee, lives near Lowe's Cross-Roads, in Graves county, about 15 miles from Mayfield.

Shortly after the death of Mrs. Mike Lee on March 3, 1915, her husband delivered to the appellant at Lebanon, by the hands of M. A. Lee, the following telegram:

"Lebanon Ky. 5/3/1915.

Robert Lee, Mayfield--R. F. D. No. 1. Wife died this morning. Funeral Friday. Answer if coming.

Mike Lee."

The message was promptly transmitted from Lebanon to Mayfield by the way of Louisville and Nashville, Tenn., the usual and the most direct route. After making some ineffectual efforts to find Robert Lee, the appellant's operator at Mayfield placed the message in the post office, directing it to "Robert Lee, Mayfield, Ky. R. F. D. No. 1." It was never delivered. Some two weeks later, Robert Lee learned of his mother's death from a newspaper, and upon calling at the telegraph office, on March 26th, the message was read to him.

In this action brought by Robert Lee for damages for mental anguish suffered by him, there was a verdict and judgment for $1,250. The company appeals, and for a reversal it insists: (1) That since the telegram was sent by the way of Nashville, Tenn., it constituted interstate commerce; (2) that the Interstate Commerce Act of 1887, as amended by the act of 1910, applied to and controlled the rights of the parties; (3) that, under the federal statutes and decisions, mental anguish is not an element of damage, and the stipulations restricting the damages in cases of unrepeated messages are enforceable; (4) that Robert Lee and Mike Lee could not both recover upon the same telegram; (5) that the court erred in refusing instructions asked by the appellant, and in admitting incompetent testimony over appellant's objection; and (6) that the verdict is excessive. Relying upon the claim that this was a case of interstate commerce and controlled by the federal law, the defendant, as a partial defense, further interposed the plea (7) that the message was an unrepeated message, and, by the terms and conditions under which it was accepted, the company could not be held liable for mistakes and delays in the transmission or delivery of an unrepeated message beyond the amount received for sending it--in this case 40 cents. The answer also set up the further partial defenses: (8) That by the terms of the contract the company should not be liable for mistakes or delays in the transmission or delivery or for the nondelivery of any character of message, whether caused by the negligence of its servants or otherwise, beyond the sum of $50; and (9) that the claim was not presented in writing within 60 days after the telegram was filed with the company for transmission.

The trial court, however, treated the case as one of intrastate commerce, and overruled the partial defenses under section 196 of the state Constitution, which prohibits a carrier from contracting to relieve itself from its common-law liability. Adams Express Co. v. Walker, 119 Ky. 121, 83 S.W. 106, 26 Ky. Law Rep. 1025, 67 L.R.A. 412; Southern Express Co. v. Fox & Logan, 131 Ky. 257, 115 S.W. 184, 117 S.W. 270, 133 Am.St.Rep. 241; L. & N. R. R. Co. v. Woodford, 152 Ky. 407, 153 S.W. 722.

Is this a case of interstate commerce? And, if so, can it be affected, incidentally, by state laws enacted under the police power?

1. In regard to those matters relating to commerce which are not of a nature to be affected by locality, but which necessarily ought to be the same over the whole country, the silence of Congress upon such subject, over which it had unquestioned jurisdiction, is equivalent to a declaration that in those respects commerce should be free and unregulated by any statutory enactments. Welton v. Missouri, 91 U.S. 282, 23 L.Ed. 347; Hall v. De Cuir, 95 U.S. 490, 24 L.Ed. 547. In other words, the matters upon which the silence of Congress is equivalent to affirmative legislation are national in their character, and such as to fairly require uniformity of regulation upon the subject-matter involved affecting all the states alike. Mobile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238. There are, however, other subjects of commerce over which Congress may but has not assumed jurisdiction, and concerning which the states may act in the exercise of their police power, in the absence of congressional action.

And in cases where the commerce is intrastate, the state's power is exclusive. We have therefore three classes of cases: (1) Those in which the power of the state is exclusive; (2) those in which the power of Congress is exclusive; and (3) those in which the states may act in the absence of legislation by Congress. Covington & Cin. Bridge Co. v. Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962.

It is not every state law, which may incidentally affect interstate commerce and the persons engaged in it, that necessarily constitutes a regulation of commerce within the meaning of the federal Constitution. Legislation which is a mere aid to interstate commerce may be enacted by a state in the exercise of its police power, although at the same time it may incidentally affect that commerce itself. Mobile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238. This is a legitimate exercise, by the state, of its police power.

Thus, it has been held that state laws for the regulation of pilots; for quarantine and inspection; for policing harbors; improving navigable channels; regulating wharves, piers, and docks; constructing dams and bridges across the navigable waters of a state; and laws for the establishment of ferries--are not violative of the federal Constitution. It is not the existence of the power of Congress to regulate commerce in this class of cases, but the exercise of that power by Congress that will prohibit state action. In this class state action is permissible in the absence of congressional regulations. Sturges v. Crowninshield, 4 Wheat. 122, 4 L.Ed. 529. On the other hand, a state statute which assumed only to regulate persons engaged in interstate commerce while passing through the particular state was held void because it, in effect and necessarily, regulated and controlled the conduct of such persons throughout the entire voyage which stretched through several states. Hall v. De Cuir, 95 U.S. 485, 24 L.Ed. 547.

As a general proposition, telegraph lines extending through different states are instruments of commerce, which are protected by the commerce clause of the federal Constitution, and messages passing over such lines from one state to another constitute a portion of commerce itself. Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U.S. 1, 24 L.Ed. 708; Western Union Tel. Co. v. Texas, 105 U.S. 460, 26 L.Ed. 1067; Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 7 S.Ct. 1126, 30 L.Ed. 1187; Western Union Tel. Co. v. James, 162 U.S. 654, 16 S.Ct. 934, 40 L.Ed. 1105; Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 31 S.Ct. 59, 54 L.Ed. 1088, 36 L.R.A. (N. S.) 220, 21 Ann.Cas. 815.

But in the absence of a federal statute assuming to take control of this branch of commerce when it is interstate, there are many cases in which the state regulation is merely incidental and therefore permissible under the police power. Thus, in Western Union Telegraph Co. v. James, supra, decided in 1896, the state of Georgia had provided by statute a penalty of $100 for the failure of a telegraph company to promptly deliver a message; and James sued to recover the penalty and damages for the defendant's failure to deliver a message sent to him at Blakely, Ga., from Eufaula, Ala. In speaking of Hall v. De Cuir, supra, and in sustaining the recovery in the James Case, the court in that case said:

"It is seen from this reasoning that the foundation for holding the act void was that it necessarily affected the conduct of the carrier and regulated him in the performance of his duties outside and beyond the limits of the state enacting the law. A provision for the delivery of telegraphic messages arriving at a station within the state is not of the same nature as that statute and would have no such effect upon the conduct of the telegraph company with regard to the performance of its duties outside the state."

But in Western Union Telegraph Co. v. Pendleton, 122 U.S. 347, 7 S.Ct. 1126, 30 L.Ed. 1187, a similar statute of Indiana, which provided a penalty for the failure to deliver a message sent from Shelbyville, Ind., to Ottumwa, Iowa, was declared invalid as a regulation of interstate commerce because it attempted to regulate the delivery of messages in Iowa. It was attempted to sustain this Indiana statute under the police power. But in its opinion the court said:

"Whatever authority the state may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the delivery of messages in other states."

The James Case and the Pendleton Case well illustrate the application of the rule to telegraph cases, in the absence of congressional action. The Pendleton Case was relied upon for a reversal of the James Case; but, in pointing out the difference in...