4 S.D. 105 | S.D. | 1893
On the 4th day of January, 1892, the respondent offered to the appellant, at its office in the city of Sioux Falls, a written message, confessedly unobjectionable in matter, and requested that it be transmitted in the usual way to the party to whom it was addressed, and then and there offered to pay the usual compensation therefor. The message was written on ordinary white writing paper. The company declined to send the same unless written upon, or attached to, one of its message blanks. This the respondent refused to do unless the stipulations contained in such message blank should be first erased, so that he would not be bound thereby. Under these circumstances the message was refused by the company. Upon these facts, which appear to be undisputed, respondent brought an action against the appeilent company to recover actual damages, and $50 in addition thereto, under Section 3910, Comp. Laws. The Section reads as follows: ‘ ‘Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto. ” Upon the trial the respondent proved his actual damages, and had a verdict for 25 cents actual and $50 statutory damages. Upon this verdict judgment was entered, a new trial refused, and the company appeals.
While other assignments of error, which will be hereafter noticed, were presented and argued, it is evident that the major question is the light of the appellant company to insist upon the message being received and sent subject to the stipulations contained in the message blank, and, if the person offering the message refuse to agree thereto, to decline to receive or transmit the same. If the law sustains the company’s right •to so insist, or to refuse the message, then, upon the facts in
By the statute law of this state, (Section 3881, Comp. Laws,) ‘‘every one who offers to the public to carry persons, property, or messages is a common carrier of whatever he thus offers to carry. ” That the word ‘ ‘messages, ’ ’ as here used, was intended to include telegraphic messages, is evident from the closely-following sections, wherein a “carrier by telegraph” and a “carrier of messages by telegraph-’ are expressly named, and their duties as such defined. From the adoption of the Civil Code, in 1872, until the legislative session, of 1873-74, the State of California had the same statutory provisions, but at the session named the above-quoted section was amended by inserting an express exception of ‘telegraphic messages. ” During the short time such original provision was there in force, we do not find any reported case in which it was considered. Prior to the adoption of such Code provision the supreme court of that state had held in Parks v. Telegraph Co., 13 Cal. 422, that the defendant company, asa general telegraph company,, was a common carrier; but the decisions of the courts have been, with great unanimity, against this view, and under the amended statutes it is now so held in California. Hart v. Telegraph Co., 66 Cal. 579, 6 Pac. Rep. 637. Appellant, however, advances the proposition that these provisions of the old Civil Code, being the sections of the Compiled Laws, above cited, which declare telegraph companies to be common carriers, are superceded and repealed by, because incoesistent with, the constitution. This contention is founded largely upon Section 11, Art. 17, of the constitution: “Any association or corporation organized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph in this state, and to connect the same with other lines, and the legislature shall by general laws, of uniform operation, provide reasonable regulations
The dominant question in this case, upon the merits, being whether the stipulations upon the message blank, or any of them, so far restricted appellant’s liability as a common carrier as to justify respondent’s refusal to consent to them, as a condition of having his message accepted and sent by appellant, we have thought it just to both parties to examine them severally, expressing our opinion upon each, so far as they are involved by the facts in this case. It is not claimed that either of the'regulations or stipulations printed upon the message blank, and which respondent was required to assent to, offended against the rule of impartiality, which appellant, as a common carrier, was bound to observe. Respondent, however, strenuously insists that the stipulation on the printed blank would, if assented to by him, have the effect of relieving the company from a liability inclosed upon it by law, as a common carrier, and consequently he ought not to be comxDelled to agree to it, as a condition of having his message sent.
It was further provided, as one of the stipulations to which respondent should consent, as a condition of sending his message, that “no responsibility regarding messages attaches to the company until the same are presented and accepted at one of its transmitting offices. ” This would seem to be quite consistent with the provisions of our statute making the carrier’s duty to commence when whatever is to be carried is offered ‘ ‘at a reasonable time and place;” but that, like the stipulation as to cypher and obscurely written messages, is not a question in
Another stipulation of- the message blank was that “the company will not be liable for damages or statutory penalties in. any case where the claim is not presented in writing within; sixty days after the message is filed with the company for transmission.’’ Appellant here insists that this • condition does not propose, nor is its effect, to limit in any way its responsibility as a common carrier, but is rather in the nature of a reasonable regulation, which appellant has a right to make, and which respondent, without any special contract on his part, was bound to observe, and cites cases in support of that view, notably that of Express Co. v. Caldwell, 21 Wall. 264. That case came before the court on plaintiff’s demurrer to defendant’s plea averring an express agreement upon the part of the plaintiff shipper that defendant should not be liable for loss or damage unless claim therefor was made within -90 days, and the question presented and decided was whether such an agreement, when made was binding on the plaintiff. As to the necessity for an agreement in order to so qualify its liability, • the court says: ‘ ‘Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordinarily attends his occupation, without a clear and express stipulation to that effect obtained by him by his .employer;” thus treating the stipulation in question not as a reasonable regulation, which it was competent for the carrier to make, and binding on the shipper without his consent, but as an agreement depending upon the consent of both parties.. The court held that such an agreement was not such an attempted restriction of the carrier’s responsibilities as would be invalid, but being, reasonable, and fully assented to by botb parties, it was binding; but that is not equivalent to saying that the carrier could compel the shipper to enter into such a con -
Following the line of these views, we are of the opinion
Finally, it is assigned as error that during the trial the jury was allowed to separate for a few moments without being admonished by the court, as required by Section 5051, Comp. Laws, not to converse among themselves, or with others, upon the subject of the trial. Whether, in any case, this fact alone would constitute reversible error, it is not now necessary to determine. The facts were not in dispute, and the law, as we understand it, applied to the conceded facts, plainly required the verdict which the jury rendered. Under such circumstances the appellant could not have been prejudiced. The judgment of the county court is affirmed.