Western Union Telegraph Company v. Boegli

Citation115 N.E. 773,187 Ind. 238
Decision Date17 April 1917
Docket Number22,664
PartiesWestern Union Telegraph Company v. Boegli
CourtSupreme Court of Indiana

Rehearing Denied March 12, 1918.

From Allen Circuit Court; J. W. Eggeman, Judge.

Action by Peter Boegli against the Western Union Telegraph Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Barrett Morris & Hoffman, Pickens, Moores, Davidson & Pickens and George H. Fearons, for appellant.

Arthur W. Parry, for appellee.

OPINION

Harvey, J.

Appellee sued appellant for the recovery of a penalty provided by statute of Indiana, in §§ 5780, 5781 Burns 1914, Acts 1885 p. 151, for failure to deliver a telegram "with impartiality and good faith, and in the order of time in which it was received." Appellant also filed a second paragraph of complaint seeking to recover special damages; but this paragraph was dismissed before the trial.

A demurrer was overruled to the first paragraph of complaint. The defendant answered in three paragraphs; a demurrer was sustained to the second and third. All the matters set up in the second regarding diligence in effort to deliver were provable under the general denial of negligence charged in the complaint. The third paragraph of answer alleges that Congress, by the act of June, 1910, had severed interstate communications from state regulation, and had conferred upon the Interstate Commerce Commission power over the same.

The facts out of which this controversy grew are, in short, that the appellee was a party to litigation pending in Chicago; that he was represented by his attorney at Chicago and by his attorney at Fort Wayne. On the day preceding that on which said cause in Chicago was to be tried, plaintiff's attorney in Chicago sent "collect" to plaintiff's attorney in Fort Wayne a dispatch in the following words:

"Have Boegli and other witnesses at our office at eight a. m. Thursday."

This telegram was received by appellant's office in Fort Wayne about five o'clock p. m. on the day on which it was delivered to appellant, and during appellant's office hours, but because the attorney in Fort Wayne was not in his office until about 8:30 o'clock next morning, said telegram was not delivered until that hour, although said attorney was at his home in Fort Wayne during all of the time between the receipt of the telegram and the delivery, and said attorney's address was given in the Fort Wayne city directory and in the telephone directory, and his home was connected by telephone.

The points made here are: (1) The penalty in this case cannot be recovered because the message was not prepaid. (2) The penalty cannot be recovered because the contract for the transmission of the message was made out of this state. (3) Only the sender of a message can recover the penalty. (4) In the act of Congress of June 18, 1910 (1 Fed. Stat. Ann. Supp. [1912] 111-117, §§ 8563, 8566, 8569, 8574 U.S. Comp. Stat. 1916), telegraph companies doing an interstate commerce business are declared common carriers, and have been placed wholly under the supervision of the Interstate Commerce Commission, and subject to the same rules, regulations, restrictions and penalties that are imposed on other common carriers, and that therefore the Indiana statute is superseded.

The telegram here involved was accepted by appellant in Chicago under an arrangement that the charge therefor should be collected in Fort Wayne, and the charge is shown to have been paid within two or three days after the receipt of the message. The court held in Western Union Tel. Co. v. Henley (1901), 157 Ind. 90, 60 N.E. 682, that: "Appellant (telegraph company) had the right to exact cash in advance,--and also had the right to waive it. If appellant elected to accept business on credit, there arose the same duties that follow cash payment."

Appellant cites upon this proposition Western Union Tel. Co. v. Mossler (1884), 95 Ind. 29. This decision involved a contract made when the statute provided that the company shall "on payment or tender of the usual charges, according to the regulations of the company, transmit," etc. The telegram in that case was sent "collect." It was held that, as the sender "accepted the company's waiver of payment in advance," he "therefore waived the statutory penalty." The statute referred to in said decision was amended in 1885. The amendatory statute, which continues in force, omitted the words above quoted, and provided for transmission "upon the usual terms" and the ruling in the Henley case was based upon the statute as so amended, and governs the decision in this case.

Proposition Nos. 2 and 3 can be fairly considered together. It has been held that the penalty cannot be collected because of the negligence of the telegraph company in the delivery of a message deposited with the company in another state for transmission to a point in this state. Carnahan v. Western Union Tel. Co. (1883), 89 Ind. 526, 46 Am. Rep. 175. It is further held that only the sender of such an interstate message is entitled to recover the statutory penalty. Western Union Tel. Co. v. Reed (1884), 96 Ind. 195; Western Union Tel. Co. v. Pendleton (1884), 95 Ind. 12, 48 Am. Rep. 692, reversed on another point in 122 U.S. 347, 7 S.Ct. 1126, 30 L.Ed. 1187; Hadley v. Western Union Tel. Co. (1888), 115 Ind. 191, 15 N.E. 845. If the holdings above referred to apply to the facts in this case, this case is thereby decided in favor of the appellant. The ruling last above stated, however, is based upon the further ruling that the right to recover the penalty depends upon the existence of a contract for the transmission and upon privity of contract in the plaintiff, and is to the effect that only the sender is a party to such contract.

It is held that an undisclosed principal in whose interest a contract is made for the transmission of a telegram may recover the penalty. Western Union Tel. Co. v. Troth (1908), 43 Ind.App. 7, 84 N.E. 727, and cases cited. See, also, discussion in Milliken v. Western Union Tel. Co. (1888), 110 N.Y. 403, 18 N.E. 251, 1 L. R. A. 281; Western Union Tel. Co. v. Schriver (1905), 141 F. 538, 72 C. C. A. 596, 4 L. R. A. (N. S.) 686. The facts disclose that the contract for this message was made by plaintiff through plaintiff's agent in Chicago for the transmission to plaintiff, through plaintiff's agent in Indiana, of the message in a matter connected with such agency, and for the sole use and benefit of the plaintiff. The paramount feature of the execution of said contract by appellant, for the benefit of said undisclosed principal, was the proper and diligent delivery in Indiana of said telegram. The plaintiff was therefore the sender and the receiver and the contractor for delivery of said dispatch, and, within the contemplation of the statute, is the party "aggrieved," who, according to the statute, is entitled to recover the penalty.

We have not been referred to, nor have we found, a decision in the Indiana reports expressly deciding that the receiver who is also the sender of an interstate dispatch may recover; but we believe that to so hold is right, in view of the legal principle involved, and this holding is supported by a clear inference from cases somewhat similar. Western Union Tel. Co. v. Kinney (1886), 106 Ind. 468, 7 N.E. 191; Western Union Tel. Co. v. Fenton (1875), 52 Ind. 1.

This leads us to the conclusion that appellee is entitled to recover the statutory penalty, unless Congress has by enactment, or the Interstate Commerce Commission has by regulation, made under the power granted to the commission by Congress, so specifically regulated the delivery of interstate telegraphic messages as to exclude the power of the state to enforce its statute on the same subject.

There is no showing in the record in this case that the Interstate Commerce Commission has made any regulation affecting the delivery of telegrams. Appellant does not so claim in its brief. The mere granting by Congress to such commission of the power to do so is not sufficient to exclude the operation of a state statute. As to this the Supreme Court of the United States, in Southern R. Co. v. Reid (1911), 222 U.S. 424, 436, 32 S.Ct. 140, 142, 56 L.Ed. 257, said: "The mere creation of the Interstate Commerce Commission and the grant to it of a large measure of control over interstate commerce does not, in the absence of action by it, change the rule that Congress by nonaction leaves power in the states over merely incidental matters. 'In other words, * * * the mere grant by Congress to the commission of certain national powers in respect to interstate commerce does not of itself and in the absence of action by the commission interfere with the authority of the state to make those regulations conducive to the welfare and convenience of its citizens. Until specific action by Congress or the commission the control of the state over those incidental matters remains undisturbed.'" See also, Missouri Pacific R. Co. v. Larabee Flour Mills Co. (1908), 211 U.S. 612, 29 S.Ct. 214, 53 L.Ed. 352.

We are therefore called upon to consider only whether Congress has passed an act directly superseding the power of the state. Neither the commerce clause of the United States Constitution, nor the fact that Congress has power to make provisions regulating interstate common carriers, including telegraph companies, renders invalid a state statute regulating the delivery of interstate telegrams until Congress has acted, and by such action covered the specific matter governed by the state statute. Pittsburgh, etc R. Co. v. State (1908), 172 Ind. 147, 87 N.E. 1034. The opinion of this court in the above cause was adopted by the Supreme Court of the United States in its general order of affirmance. See 223 U.S. 713, 32...

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