(dissenting)—The majority opinion is silent upon the question of whether or not appellant, by its stipulation to that effect upon the back of the form used for sending the message, can escape all liability for negligence for its mistakes, delay in transmission or delivery, or nondelivery of an unrepeated message; but the great weight of authority is to the effect that liability cannot be so avoided. A reasonable limitation of the liability, if contracted for, might be upheld, but a stipulation against all liability (and this is such a stipulation, because to return the unearned fee for sending a correct message is not a payment of any damages sustained) is against public policy and void. Among the authorities which so hold are the following: Strong v. Western Union Tel. Co., 18 Idaho 389, 109 Pac. 910, Ann. Cas. 1912A 55, 30 L. R. A. (N. S.) 409; Western Union Tel. Co. v. Anniston Cordage Co., 6 Ala. App. 351, 59 South. 757; Stiles v. Western Union Tel. Co., 2 Ariz. 308, 15 Pac. 712; Western Union Tel. Co. v. Short, 53 Ark. 434, 14 S. W. 649, 9 L. R. A. 744; Western Union Tel. Co. v. Tyler, 74 Ill. 168, 24 Am. Rep. 279; Central Union Tel. Co. v. *550Swoveland, 14 Ind. App. 341, 42 N. E. 1035; Harkness v. Western Union Tel. Co., 73 Iowa 190, 34 N. W. 811, 5 Am. St. 672; Western Union Tel. Co. v. Crall, 38 Kan. 679, 17 Pac. 309, 5 Am. St. 795; Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904, 58 Am. St. 609, 34 L. R. A. 492; Western Union Tel. Co. v. Lowrey, 32 Neb. 732, 49 N. W. 707; Blackwell Milling & Elevator Co. v. Western Union Tel. Co., 17 Okl. 376, 89 Pac. 235.
This brings us, then, to what the majority denominates the controlling question in the case, that is: “whether Congress, by legislation, has occupied the field covering the transmission of interstate messages and messages to foreign countries.” It may be admitted that the courts are divided upon this question; but feeling, as I do, that the states should maintain their jurisdiction until it appears beyond doubt that Congress has occupied the field, I cannot concur with the majority, nor do I think that the better reasoning is with the majority—quite the contrary. The 1910 amendment, upon the construction of which rests the solution of the question, has never been specifically passed upon by the supreme court of the United States, and yet the decisions of that court clearly indicate that this amendment does not take away from the several states the right to apply their own rules of liability in cases of negligence.
This amendment adds nothing to the original interstate commerce act to show a purpose or intent on the part of Congress to occupy the field exclusively, and its purpose seems to be to include under the operation of the act telegraph and telephone companies not theretofore included, upon practically the same terms as those which affected railroads and other common carriers prior to the amendment of 1906, commonly called the Carmack amendment, and nowhere in the language employed is there anything of the character *551of the Carmack amendment which in terms applies only to carriers of goods and does not apply to telegraph companies. In discussing the interstate commerce law and the effect of the Carmack amendment, the supreme court of the United States said, in Adams Express Co. v. Croninger, 226 U. S. 491, 44 L. R. A. (N. S.) 257:
“That the constitutional power of Congress to regulate commerce among the States and with foreign nations comprehends power to regulate contracts between the shipper and the carrier of an interstate shipment by defining the liability of the carrier for loss, delay, injury or damage to such property, needs neither argument nor citation of authority.
“But it is equally well settled that, until Congress has legislated upon the subject, the liability of such a carrier, exercising its calling within a particular State, although engaged in the business of interstate commerce, for loss or damage to such property, may be regulated by the law of the State. Such regulations would fall within that large class of regulations which it is competent for a State to make in the absence of legislation by Congress, growing out of the territorial jurisdiction of the State over such carriers and its duty and power to safeguard the general public against acts of misfeasance and nonfeasance committed within its limits, although interstate commerce may be indirectly affected: Smith v. Alabama, 124 U. S. 465; New York &c. Railroad v. New York, 165 U. S. 628; Chicago, Milwaukee & St. P. Ry. v. Solan, 169 U. S. 133, 137; Richmond &c. Ry. v. Patterson Co., 169 U. S. 311; Cleveland &c. Ry. v. Illinois, 177 U. S. 514; Pennsylvania Railroad v. Hughes, 191 U. S. 477. In the Solan case, cited above, it was said of such state legislation :
‘ ‘ ‘ They are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and the liability of those engaged in such commerce. So long as Congress has' not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as *552a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits.’ ”
After discussing the effect of these decisions, made prior to the Carmack amendment, the court again says:
“In view of the decisions of this court in the two cases last referred to, we shall assume that this case is governed by them, unless the subsequent legislation of Congress is such as to indicate a purpose to bring contracts for interstate shipments under one uniform rule of law not subject to the varying policies and legislation of particular States. ...
‘ ‘ That the legislation supersedes all the regulations and policies of a particular State upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the State upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist. Northern Pacific Ry. v. State of Washington, 222 U. S. 370; Southern Railway v. Reid, 222 U. S. 424; Mondou v. Railroad, 223 U. S. 1.”
A reading of the 1910 amendment, quoted in the majority opinion, at once discloses that Congress has there covered the subject of rates and charges only, and by no word or set of words has it attempted to legislate upon the subjects of negligence in the transmission or delay of messages, or liability for such negligence. For the position of the supreme court of the United States upon the particular question here involved, we are therefore brought back to the cases of *553Pennsylvania R. Co. v. Hughes, 191 U. S. 477, and Chicago, Milwaukee & St. Paul R. Co. v. Solan, 169 U. S. 133, based upon the law as it was prior to the Carmack amendment and as the law now is with reference to telegraph and telephone companies, in the former of which it is said:
“In refusing to limit the recovery to the valuation agreed upon, did the state court deny to the company a right or privilege secured by the interstate commerce law? It may be assumed that under the broad power conferred upon Congress over interstate commerce as defined in repeated decisions of this court, it would be lawful for that body to make provision as to contracts for interstate carriage, permitting the carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. But upon examination of the terms of the law relied upon we fail to find any such provision therein. . . .
“While under these provisions it may be said that Congress has made it obligatory to provide proper facilities for interstate carriage of freight, and has prevented carriers from obstructing continuous shipments on interstate lines, we look in vain for any regulation of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and, until Congress shall legislate upon it, is there any valid objection to the State enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage? . . .
“The State has a right to promote the welfare and safety of those within its jurisdiction by requiring common carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding. This requirement in the case just cited is.held not to be an unlawful attempt to regulate interstate commerce in the absence of Congressional action providing a different measure of liability when contracts, such as the one now before us, are made in relation to interstate carriage.”
*554The decisions which hold that the right to classify messages and make different rates for the different classes, which is clearly given by the amendment under discussion, includes also the right to make rules limiting or excluding liability for negligence in the transmission or delay, seem to read something into the act which I am unable to find there, which, under any fair construction of the language used, was not intended by the law-making power. In Western Union Tel. Co. v. Piper (Tex. Civ. App.), 191 S. W. 817, it is said:
“In view of what has thus been stated, it can hardly be said to be clear that Congress, by the enactment of the act of 1910, intended to subject telegraph companies to the operation of the wholly inapplicable regulations originally designed for the government of an altogether different character of carrier. The law of 1910, as will be seen by a reference to it, as herein-before quoted, and in so far as herein pertinent, merely impresses upon telegraph companies the character of a common carrier; provides that their charges shall be ‘just and reasonable’; declares that unjust and unreasonable charges shall be unlawful; and specially provides that messages may be classified as in the act directed, and that ‘ different rates may be charged for the different classes of messages.’ No reference whatever is made to the subject of the contract for the transmission of the message or of the liability for the breach of such contract. Had Congress intended to assume control over these subjects it would seem to have been easy to have so declared, or to have provided appropriate regulations having such effect, as was done in the case of carriers of property. As Mr. Justice Hodges in the opinion in the Bailey Case, as printed in the 171 S. W. 842, so pertinently and forcefully says, after reviewing the act of 1910:
“ ‘It appears from these extracts that the extent to which Congress has gone is merely to declare that telegraph companies shall be considered common carriers, and to require them to make and observe reasonable rates and charges for the services which they per*555form, and to permit them to divide their messages into classes, presumably as a basis for rates. The mere fact that Congress has enacted some legislation on this subject does not, of itself, signify a purpose to monopolize the field and exclude the states entirely. M. K. & T. Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. St. 790, 58 L. Ed. 1377, L. R. A. 1915E 942; Atl. C. L. Ry. Co. v. State of Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312.’ ”
In Des Arc Oil Mill v. Western Union Tel. Co., 132 Ark. 335, 201 S. W. 273, it is said:
“It was clearly the intention of Congress in enacting this statute to confer authority on the commission merely to regulate rates and classification of messages, and not to confer authority to declare the principles of law affecting the liability of a carrier for its wrongful acts or omission. Western Union Tel. Co. v. Bailey, supra. The classification of repeated and unrepeated messages and the fixing of rates for the different classes of messages is quite a different thing from a contract absolving the carrier from liability for its own negligence. If it had been intended to confer power upon the Interstate Commerce Commission to change the law in that respect by the mere approval of classification of rates, doubtless the framers of the statute would have used different language. . . .
“The stipulation with respect to the telegraph message can not be sustained as a stipulation for value because in the very nature of the case a telegram or the damages which may flow from its breach can not be estimated in advance. Western Union Tel. Co. v. Compton, supra. Nor can adherence to the common law principle which invalidated such a stipulation be viewed as a burden upon or interference with interstate commerce, or as being in conflict with the authority of the Interstate Commerce Commission over that subject, for, as before stated, the exemption does not come within the scope of the regulation of rates or of classification of messages, but is purely an attempt to *556contract against the general law of the land with respect to liability for negligence. ’ ’
Indeed, there seems to be no other logical conclusion to be reached, and it is Useless to quote from other courts or multiply authorities for what seems to be obvious. The judgment of the trial court was right and should be affirmed.
Holcomb, C. J., concurs with Tolman, J.