151 Mich. 425 | Mich. | 1908
In point of time, the statute considered here was passed after this court had, in the absence' of a statute, held that regulations similar to the one in question, limiting the liability of a telegraph company for mistakes and delays in transmitting messages and for failures to deliver them, were not unreasonable. The statute is entitled:
“An act to prescribe the duties of telegraph companies, incorporated either within or without this State, relative to the transmission of messages, and to provide for the recovery of damages for negligence in the performance of such duties.” Act No. 195, Pub. Acts 1893.
The duties of telegraph companies with respect to the transmission of messages arise not alone upon the terms of express contracts which they make, but, also, upon the nature of the business carried on and the interest of the public in the manner of conducting the business. They are not common carriers and they would not, at common law, be liable for mistakes or for delays or failures for which they were not, exercising proper care, responsible. It must be assumed that the legislature, taking into account this rule of law and the one established by this court, and already referred to, attempted to change, not the rule affecting liability for such miscarriages as proper care would have prevented, but the rule that for miscarriages for which they were responsible they might limit
“ It is agreed that the company shall not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message beyond the amount received for sending the same. * * * ”
The declaration of the plaintiff is in assumpsit and counts upon the contract and avers breach thereof. The message was delivered by plaintiff at Detroit, Michigan, addressed to a corporation in Kansas City, Missouri. The evidence shows the message was transmitted by defendant to its Chicago office, and, fairly, that it was sent no further. It was not delivered at Kansas City. The reason for failure to deliver was, it may be inferred, failure to transmit beyond Chicago. No reason appears for failure to so transmit. Plaintiff, during the same day that the message in question was sent and was lost, sent to and received from the same party at Kansas City various messages by defendant’s service. The jury found, and were warranted in so doing, that the miscarriage was the consequence of defendant’s negligence.
I am of opinion that the legislature intended its ac
But, it is said, the contract is for interstate service, which fact furnishes a controlling reason why the local law may not be given effect. It seems clear that the application of the statute does not deny to defendant a right, privilege, or immunity created by Federal authority simply because it denies, where formerly the law of the State affirmed, as the law of the Federal courts does now affirm, the validity of the stipulation. Western Union
The statute as applied by the court below does not, in fact, regulate commerce among the several States, interfere with it in any way, tax or burden it, place obstacles in the way of entering into or performing contracts of commerce. If, as so given effect, the statute is invalid as an exercise of power belonging to the Congress, it is because the silence of Congress upon the subject is equivalent to an express enactment that the subject should be let alone. That Congress has not acted is plain, and the ruling of the court below was not in contravention of any Federal statute. It may be admitted that the, constitutional power of Congress over commerce among the States would sustain a. Federal law fixing the terms of contracts for interstate telegraphic service, including a rule of liability of the companies for negligence. In the absence of such legislation, the judgments of State courts refusing to give effect to similar stipulations in contracts for interstate transportation, have twice been affirmed by the Su
What has been said disposes, adversely to appellant, of the contention that its right to freely make contracts has been invaded. I am not convinced that the court below was in error in determining the rights of the parties to this contract according to the law of the State. By that law the stipulation which defendant asks to have enforced is void. I am, therefore, for affirmance of the judgment.
In the circuit court the plaintiff recovered a judgment of $960 as the damages resulting from defendant’s failure to deliver a telegram sent from
“ Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.”
It was signed by plaintiff’s president and general manager. Among the conditions referred to upon the back of said blank was this:
“It is agreed * * * that the said company shall not be liable * * * for nondelivery of any unrepeated message beyond the amount received for sending the same.”
Was this agreement valid ? That is the material question to be determined in this case. The trial court held that it was not. He held it was prohibited by section 1 of Act No. 195 of the Public Acts of 1893. That section reads as follows:
“That it shall be the duty of all telegraph companies incorporated either within or without this State, doing business within this State, to receive dispatches from and for other telegraph companies’ lines, and from and for any individual, and on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph companies, to transmit the same with impartiality and good faith. Such telegraph companies shall be liable for any mistakes, errors or delays in the transmission or delivery, or for the nondelivery of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reason of mistakes, errors or delays in the transmission or delivery, due to negligence of such company, or for the nondelivery of any such dispatch, due to negligence of such telegraph company or its agents, to be recovered with costs of suit, by the person or persons sustaining such damage.”
Does this construction make the statute unconstitutional as an interference with the right of Congress to regulate commerce between States? In answer to this question we need do nothing more than quote from decisions of the Supreme Court of the United States, and those decisions are authoritative. Said that court, speaking through Mr. Justice Bradley, in Walling v. Michigan, 116 U. S. 455:
“We have so often hfeld that the power given to Congress to regulate commerce with foreign nations, among the several States and with the Indian tribes, is exclusive in all matters which require, or only admit of, general and uniform rules, and especially as regards any impediment or restriction upon such commerce, that we deem it
In accordance with these principles was decided the case of Wabash, etc., R. Co. v. Illinois, 118 U. S. 557. To show what was there decided, I quote the headnotes of that opinion, the correctness of which I have verified:
“ A statute of Illinois enacts that, if any railroad company shall, within that State, charge or receive for transporting passengers or freight of the same class, the same or a greater sum for any distance than it does for a longer distance, it shall be liable to a penalty for unjust discrimination. The defendant in this case made such discrimination in regard to goods transported over the same road or roads from Peoria, in Illinois, and from Gilman, in Illinois, to New York; charging more for the same class of goods carried from Gilman than from Peoria, the former being eighty-six miles nearer to New York than the latter, this difference being in the length of the line within the State of Illinois. Held:
“ (1) This court follows the supreme court of Illinois in holding that the statute of Illinois must be construed to include a transportation of goods under one contract and by one voyage from the interior of the State of Illinois to New York.
“(2) This court holds, further, that such a transportation is ‘ commerce among the States,’ even as to that part of the voyage which lies within the State of Illinois, while it is not denied that there may be a transportation of goods which is begun and ended within its limits, and disconnected with any carriage outside of the State, which is not commerce among the States.
“ (3) The latter is subject to regulation by the State, and the statute of Illinois is valid as applied to it. But
“ (6) It follows that the statute of Illinois, as construed by the Supreme Court of the State, and as applied to the transaction under consideration, is forbidden by the Constitution of the United States, and the judgment of that court is reversed. ”
The subject of commerce in the foregoing cases was goods and not telegraph messages. But this is.a distinction of no consequence, for in the case of Telegraph Co. v. Texas, 105 U. S. 460, it was held “that a telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods,”and that “both companies are instruments of commerce, and their business is commerce itself.”
Western Union Tel. Co. v. Pendleton, 122 U. S. 347, is an interesting case. In that case the telegraph company had undertaken to transmit a message from Shelbyville, Indiana, to Ottumwa, Iowa. It did not deliver this message at Ottumwa as required by a statute of the State of Indiana. Suit was brought in Indiana and the supreme court of that State held the statute applicable and the telegraph company liable for the penalty therein imposed. The Supreme Court of the United States held this statute unconstitutional. The opinion was delivered by Mr. Justice Field. After referring to the case of Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, and Telegraph Co. v. Texas, 105 U. S. 460, he said:
“In these cases the supreme authority of Congress over the subject of commerce by the telegraph with foreign countries or among the States is affirmed, whenever that body chooses to exert its power; and it is also held that the States can impose no impediments to the freedom of that commerce. In conformity with these views the attempted regulation by Indiana of the mode in which messages sent by telegraphic companies doing business within .her limits shall be delivered in other States cannot be upheld. It is an impediment to the freedom of that form of
“ The object of vesting the power to regulate commerce in Congress was to secure, with reference to its subjects, uniform regulations, where such uniformity is practicable, against conflicting State legislation. Such conflicting legislation would inevitably follow with reference to telegraphic communications between citizens of different States, if each State was vested with power to control them beyond its own limits.”
It is scarcely necessary to state the conclusion to be drawn from these authorities and these quotations. The right which a telegraph company has to make contracts for the transmission of interstate messages cannot be taken from it by a State. If it is, commerce is not “free and untrammelled ” as according to the will of Congress it should be.
It is said that the statute deprives defendant of no right because it has no right to be negligent. This argument is plausible but is altogether specious and inapplicable. Defendant did have the right to enter into a contract limiting its liability in the event of negligence; that was a valuable right, and of that right the statute deprives it.
It is said that the contract was made in Michigan, and that its validity is to be determined by the laws of Michigan. This is true. But by what laws ? Manifestly, by the constitutional laws of Michigan, and not by the unconstitutional laws. The principle invoked is, then, of no service. It does not aid in determining the question at issue. Does the Constitution of the United States prevent the Michigan law applying to this case ? That is the-question, and that question has been determined by the decisions of the Supreme Court of the United States, and those decisions are controlling.
We do, however, think it proper to review two of the decisions of the Supreme Court of the United States upon which plaintiff places great reliance. These cases are Western Union Tel. Co. v. James, 162 U. S. 650, and Pennsylvania R. Co. v. Hughes, 191 U. S. 477. In Western Union Tel. Co. v. James the court gave effect to the statute of the State of Georgia which provided a penalty for the failure of the telegraph company to make prompt delivery within the State of Georgia of a telegram coming from another State. The distinction between that case and the case at bar is this, as shown by the following quotation from the opinion of the court:
“A provision for the delivery of telegraphic messages arriving at a station within the State * * * would have no such effect upon the conduct of the telegraph company with regard to the performance of its duties outside the State. * * * No attempt is here made to enforce the provision of the State statute beyond the limits of the State, and no other State could by legislative enactment affect in any degree the duty of the company in relation to the delivery of messages within the limits of the State of Georgia. * * * But the statute can be fully carried out and obeyed without in any manner affecting the conduct of the company with regard to the performance of its duties in other States.”
The case of Pennsylvania R. Co. v. Hughes, supra, is also easily distinguishable. There suit was brought in the courts of Pennsylvania for the recovery of damages to a horse shipped from a point in the State of New York to a point in the State of Pennsylvania. The horse was damaged in the State of Pennsylvania. The shipment was made under a bill of lading which limited the car
There suit was brought in the courts of Iowa by a drover to recover damages for injuries sustained in that State in consequence of the negligence of a railroad company while transporting him and the cattle in his charge from Rock Valley, Iowa, to Chicago, Illinois. The shipper had signed a contract limiting the liability of the carrier for any injury to the person in charge of said stock to the amount of $500. The supreme court of Iowa held this contract void because it was prohibited by an Iowa statute. The Supreme Court of the United States affirmed this judgment, saying:
“A carrier exercising his calling within a particular State, although engaged in the business of interstate commerce, is answerable, according to the law of the State,
The distinction between the Hughes and Solan Gases on the one hand, and the case at bar on the other, is clear. In the Hughes and Solan Gases the State statute was given a local application — an application within the territorial limits of the State enacting the statute. In the case at bar it is sought to give the statute of Michigan extraterritorial application. It is sought by that statute to restrict defendant’s right to carry messages between points in different States and to make it liable for an act done in another State. There is certainly nothing in the reasoning used in deciding the Hughes and Solan Cases to indicate that a State has authority to enact a statute which shall affect interstate commerce in another State. Indeed, that reasoning clearly points to the opposite conclusion. If it is true that in the absence of congressional legislation each State may regulate interstate commerce within its own borders, it follows that that commerce cannot be regulated by another State, and this is precisely
The Constitution of the United States, then, prevents the statute having any application in this case. It follows that if the legislature intended that it should apply to such a case, the United States Constitution forbids effect being given to such intention. There is, however, nothing to indicate such an intent. Nor is such intent to be presumed. It is rather to be presumed that the legislature intended to enact a law which would be wholly constitutional. The law should be construed in accordance with this presumed intent (Cooley on Constitutional Limitations [7th Ed.], p. 255), and as thus construed it applies to contracts to transmit messages between points within this State.
In the opinion of Justice Ostrander it is said:
“ If this court should be of opinion that the rule of the
To this I cannot agree. In determining that the common-law rule announced in the Carew Case shall be denied, and in determining that the statute applies to this case, the court is called upon to consider two radically different questions. In determining that the common-law rule announced in the Carew Case should be denied, the court is called upon to consider and answer in the affirmative this question: Does the common law prohibit the contract under consideration? In determining that the statute applies to this case, the court is called upon to consider and answer in the affirmative this question: Can a statute of a State deny to one engaged in interstate commerce the right which he theretofore possessed of making a contract limiting his liability ? It is true that we may avoid considering the second question by answering the first in the manner suggested, viz., by overruling the Carew Case, and it is also true that if we adopt that course our decision would be final. For it could not be reviewed by the Supreme Court of the United States under the existing law. Delmas v. Insurance Co., 14 Wall. (U. S.) 661; Pennsylvania R. Co. v. Hughes, supra. I do not understand, however, that any member of this court is willing to pursue that course. The doctrine of the Carew Case has for many years been regarded by the profession as a correct statement of the common law; it has been twice approved by subsequent decisions of this court, and the circumstance that since its > announcement it has received the approval of the Supreme Court of the United States adds much to its weight. It is true the legislature has seen fit in its wisdom to change this law. There is an implied suggestion in the reason
We hold, therefore, not that the statute under consideration is unconstitutional, but that, as properly construed, it has no application to this case.
From this reasoning it results that the judgment under review is erroneous and should be reversed and a judgment entered in plaintiff’s favor for the small amount