Rasher-Kingman-Herrin Co. v. Postal Telegraph-Cable Co.

Main, J.

The purpose of this action was to recover damages which resulted from a mistake in the transmission of an unrepeated night lettergram. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law and a judgment sustaining the plaintiff’s right to recover in the sum of six hundred dollars. From this judgment, the defendant appeals.

As the case is controlled by a question of law, the facts will only be briefly stated. The respondent, Rasher-Kingman-Herrin Company, a corporation, was engaged in business in the city of Spokane, this state. One A. W. Taylor was engaged in business at Calgary, Canada. The appellant, the Postal Telegraph-Cable Company, is a corporation engaged in the transmission of telegraphic messages for hire. The respondent, answering an inquiry from Taylor, delivered to the appellant a message which quoted “lemons seven dollars.”- When this message was delivered to Taylor at Calgary it read, “lemons four dollars.” Taylor accepted the offer as stated in the telegram delivered to him, and the lemons, together with other articles, were shipped. When they arrived at Calgary, Taylor refused to'take the lemons at a price other than four dollars. The action is to recover the difference between the seven dollars quoted on the lemons in the message delivered at the Spokane office and the four dollars specified in the message when delivered to Taylor at Calgary. In transmitting the message it was first sent to Seattle, and from that office relayed to Vancouver, British Columbia, where it was again relayed to the point of destination. There is some controversy as to whether the error in the transmission was that of the operator at Seattle in placing it on the line or that of the operator at Vancouver, who received it for retransmission. It will be assumed that the error was that of the operator in Seattle in relaying the message from there. The message at Spokane was written upon one of the appellant’s blanks which it supplied for that purpose. On the face of this blank appeared the following:

“Send the following night lettergram, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.”

One of the conditions written on the back thereof was:

“The Company [the appellant] shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated night letter-gram, beyond the amount received for sending the same; . . .”

It is not claimed that the sender of the message did not know of the terms and conditions referred to.

The controlling question is whether Congress, by legislation, has occupied the field covering the transmission of interstate messages and messages to foreign countries. If it has by such legislation so occupied the field, the judgment of the trial court cannot be sustained. The decisive question, therefore, is whether, under the interstate commerce law (24 Stat. 379), as amended by act of Congress of June 18, 1910, c. 309, 36 U. S. Statutes at Large, page 539, state laws regulating the contract obligations and liabilities of common carriers in interstate telegrams, or telegrams to foreign countries, have been superseded and annulled by the provisions of the Federal law. Section 1 of the amended act contains the following:

“The provisions of this act shall apply .. . . to telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this act. . . . All charges made for any service rendered, or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: Provided, that messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial press, government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages. . . .” [Italics supplied.] U. S. Comp St., § 8563.

The act, as amended (Compiled Statutes, 1913, §§8581, 8583), gives to the interstate commerce commission power to determine what rates, regulations or practices are just and reasonable. Under the act' an interstate carrier has a right to make regulations such as are just and reasonable governing the conduct of such interstate business. In the excerpt quoted above from the amendment referred to, telegraph companies engaged in sending messages from one state to another, or to any foreign country, are made common carriers, and the interstate commerce act is made to apply thereto. It is expressly provided, that the charges for the transmission of such messages shall be just and reasonable; that messages may be classified into day, night, repeated, unrepeated, and the other classes mentioned; and that different rates may be charged for the different classes of messages.

The question here for decision has been many times before the courts of other jurisdictions, but it is one of first impression in this court. Two of the Federal courts—one district and the other the circuit court of appeals for the eighth circuit-—the interstate commerce commission, and the courts of Alabama, Georgia, Kansas, Maine, Minnesota, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Virginia, and Wisconsin have held that, by the act of Congress approved June 18, 1910, telegraph companies, as to their interstate and foreign business, have been placed under the supervision of the interstate commerce commission, and that the act has occupied the entire field and taken complete control of the regulation of telegraph companies to the exclusion of state laws. Williams v. Western Union Tel. Co., 203 Fed. 140; Gardner v. Western Union Tel. Co., 231 Fed. 405; Unrepeated Message Case, 44 I. C. C. 670; Boyce v. Western Union Tel. Co., 119 Va. 14, 89 S. E. 106; Bailey v. Western Union Tel. Co., 97 Kan. 619, 156 Pac. 716; Western Union Tel. Co. v. Bank of Spencer, 53 Okl. 398, 156 Pac. 1175; Western Union Tel. Co. v. Schade, 137 Tenn. 214, 192 S. W. 924; Western Union Tel. Co. v. Hawkins, 198 Ala. 682, 73 South. 973; Hall v. Western Union Tel. Co., 108 S. C. 502, 94 S. E. 870; Western Union Tel. Co. v. Petteway, 21 Ga. App. 725, 94 S. E. 1032; O’Neill & Gyles v. Postal Telegraph-Cable Co., 201 Ill. App. 37; Haskell Implement & Seed Co. v. Postal Telegraph-Cable Co., 114 Me. 277, 96 Atl. 219; Dettis v. Western Union Tel. Co., 141 Minn. 361, 170 N. W. 334; Poor Grain Co. v. Western Union Tel. Co., 196 Mo. App. 557, 196 S. W. 28; Meadows v. Postal Tel. & Cable Co., 173 N. C. 240, 91 S. E. 1009; Durre v. Western Union Tel. Co., 165 Wis. 190, 161 N. W. 755.

The courts of the states of Texas, Mississippi, Arkansas, and Indiana have taken the opposite view. Western Union Tel. Co. v. Bailey, 108 Tex. 427, 196 S. W. 516; Dickerson v. Western Union Tel. Co., 114 Miss. 115, 74 South. 779; Western Union Tel. Co. v. Boegli (Ind.), 115 N. E. 773; Des Arc Oil Mill v. Western Union Tel. Co., 132 Ark. 335, 201 S. W. 273.

The courts last mentioned hold that the amendatoryact above referred to relates to rates and the classification of messages, and does not cover the subject of liability for negligence. Under those cases the same liability would exist if mistakes were made in transmission of an unrepeated as in a repeated message. The courts sustaining the view that the act has occupied the field, point out that, if the same liability exists for a mistake in the transmission of an unrepeated as in a repeated message, the right to classify and to make different charges for the respective classes would be of little consequence. The supreme court of Massachusetts, in Western Union Tel. Co. v. Foster, 224 Mass. 365, 113 N. E. 192, expressed the opinion that, so far as the act manifests a purpose to regulate the field over which Congress has paramount authority, the right of the state to exercise its police power in the same field ceases to exist, “no matter whether the particular act of Congress covers it entirely or not.”

The appellant’s regulation was specified upon the telegraph blank used, to the effect that there should be no liability for mistakes in the transmission of an unrepeated message. Under the act of Congress it had the power to classify messages into repeated and unrepeated, and to make different charges for the same. To sustain a recovery in this case would be equivalent to holding that the regulations of the company made under the act of Congress and its classification of its messages under the act were not effective. The jurisdiction to determine these matters is not in the state courts. It is said, however, that the act of Congress does not fix a rule of liability, and that therefore the state rule should be applied. If the appellant’s rules and regulations with reference to the transmission of unrepeated messages and the charges therefor are just and reasonable, no liability would exist; hence there would he no occasion for the application of the state law. The question is one which has been so frequently before the courts and so fully discussed that extended discussion here would add nothing to what has already been said. We are of the opinion that not only the great weight of authority but the better reason is with the decisions holding that the act of Congress mentioned has occupied the field, and that state laws, whatever they may be, defining the rule of liability for negligence, cannot be applied.

The judgment will be reversed.

Mackintosh, Fullerton, Parker, Mitchell, and Mount, JJ., concur.