Shaw v. Postal Telegraph & Cable Co.

79 Miss. 670 | Miss. | 1901

Lead Opinion

CalhooN, J.,

delivered tbe opinion of tbe court.

Appellee bad a telegraph office in Boston, Mass. Appellant-contracted with it in that city to send a .cipher dispatch to Memphis, Tem£\in these words: “Haycock, to-day. Impetus, aggress, balcony ceremony, charter, charioteer, leaven, thirty, daisy.” On the back of this message was a printed stipulation that the company should not be liable for mistakes in transmission of obscure or cipher messages unless the sender insured it, as he might do, by paying a trifling sum in excess of the usual charge. This message, as delivered in Memphis, Tenn., was as above, except that the middle letter “r” in the word “charter” was changed to the letter “t,” so as to make the/ word “charter” read “chatter.” This word “chatter” was also a cipher character in complainant's telegraphic code, but it had a very different meaning from the word “charter.” The message contracted to be sent, when translated, would read thus: “We do not see any chance of selling the cotton you have offered to-day. The best offer we can obtain is 5 7-8 cents, 300 average strict middling, nothing below middling; good, strong staple, nothing below 1 1-16 inches long; cotton to be shipped within thirty days. Dwight Mfg. Co., Chicopee, Mass.” The message actually delivered in Memphis, when translated, read thus: “We do not see any chance of selling the cotton you have-offered to-day. The best offer we can obtain is 5 7-8 cents, 300 average strict middling, nothing below middling; some sand and dusty staple, nothing below 1 1-16 inches long; cotton to be shipped within thirty days. Dwight Mfg. Co., Chicopee, Mass.” The word “charter” meant “good, strong staple,” while the word “chatter” meant “sand and dusty.” The difference between the letter “r” and the letter “t” in the message cost the sender about $1,000. The mistake by the transmitting operators seems quite infinitesimal, but the result was grave; and this, to the average mind, emphasizes the curious carelessness in the telegraphic codifier in using such similar words with such opposite meanings. Ap-pell ant brought his action at law in tort for his damages— $1,054.18.

\ Whether the action be ex contractu, or ex delicto, arising out N*of the contract, it must be controlled by the lex loci of the contract. )This is finally conceded!) It is also conceded that in the courts of Massachusetts appellant would be denied the right of recovery. It is also plain, and conceded, that the constitution and laws of the state of Mississippi, have nothing whatever to do with the case, but that it must be determined by the Caws of the state of Massachusetts. On behalf of the appellant, [however, it is contended that the law prevailing in the state of Massachusetts was the general common law, which the courts of each state must determine for themselves, regardless of the adjudication of what the common law is by the courts of the state of the contract. But it is admitted, as it must be from the uniform and universal rulings of all courts, that, regardless of the residence of the parties, where there is. a statute, the construction and interpretation of the statute by the court of the state of the statute is binding on the courts everywhere. It is, of course, not tolerable to avoid this universal rule by a mere change of the form of action from one on the contract to one in tort for non-performance of the contract. If complainant could not sue in Massachusetts because of its statute, he cannot sue anywhere. A statute of Massachusetts, existing at the time of the contract, referring to the telegraph companies, is in these words: “Every company shall receive dispatches from and for other telegraph lines, companies, and associations; and, on payment of the usual charges for transmitting dispatches according to the regulations of the company, shall transmit the same faithfully and impartially.” Gen. St., 1860, p. 373, sec. 10. This statute was considered by the supreme court of Massachusetts in 1866 in the case of Ellis v. Telegraph Co., 13 Allen, 226. That court, consisting of six judges, speaking through Chief Justice Bigelow, after discussing the common law, said: “But we need not have recourse to these familiar and well-settled principles of the common law, in order to establish the right of the owners and conductors of the telegraph companies to make rules and regulations by which to define and limit their duties and obligations in the transaction of the business which they assume to parry on. This right is clearly recognized and affirmed by the statute already cited.” Page 235. The court then proceeds to hold that the “regulation” must be reasonable according to the “true interpretation of the statute” (page 235), and then holds that the requirements of increased tariff to insure accuracy is reasonable, about which the court says: “Upon this point we can entertain no doubt.” The same court, differently constituted in its personnel as to several of its members, composed of seven members, speaking through Chief Justice Gray, recited the same statute, and arrived at the same conclusion. This was in 1873. Grinnell v. Telegraph Co., 113 Mass., 299 (18 Am. Rep., 485). Appellant tries to escape from these decisions by urging upon us that the scope and extent of the statute is a common-law question, not to be finally settled by the courts of the state of the statute. This cannot be. Courts may construe and interpret the scope and extent of their local statutes, and say what they embrace, or do not embrace, and their conclusion must be authoritative in every other state. It is not possible to interpret a statute without interpreting its scope. What a statute embraces, or does not embrace, is necessarily in every construction of it. At least, the writer cannot now recall or imagine a case where there could be any need of construction or interpretation except only to determine what it includes or excludes, what it comprehends or does not comprehend — in other words, its scope and effect. Now it is conceded that the Massachusetts court holds that the statute of that state does include the matter in controversy, and this ends the case. The 'position that because sec. 195 of our constitution makes telegraph companies common carriers, and our courts have held that they cannot contract against their own negligence, enables us to invalidate a valid or mate valid an invalid Massachusetts contract, is unsupported by any decision in the whole world. If so, Massachusetts could validate and invalidate Mississippi contracts. There is no penalty in either state. One simply makes the contract valid, the other invalid, and the whole question is, in which state was it entered into ? There is no statute in either state declaring that its courts shall not enforce, or shall enforce, valid or invalid contracts under the statutes of the other, as ivas the case in Lemonius v. Mayer, 71 Miss., 514 (14 So. Rep., 33). One state cannot be made the dumping ground for lawsuits between citizens of another State when they cannot recover from each other in their own state, where they made the contract, because of their own statute as construed by their own court. It is idle to attempt to assimilate this case to the case of general transitory actions allowable in the home courts. Our own court has repeatedly held that actions in tort, as well as in contract, are governed by the'law of the place of the ^injury. Railroad Co. v. Wallace, 50 Miss., 244; Car Co. v. Lawrence, 74 Miss., 782 (22 So. Rep., 53); Martin v. Railroad Co. (Miss.), 27 So. Rep., 646; Railroad Co. v. Crudup, 63 Miss., 291; Railroad Co. v. Doyle, 60 Miss., 977. And in some of these cases, there were no statutes, and the decisions are looked to in order to ascertain the law of the state of the injury. But it is unnecessary to decide upon the question of the controlling law where, there is no statute. The real complaint here is the non-execution of a Massachusetts contract, and the fact that the defendant’s damaging mistake was made by its operative in Georgia in repeating the message can make no difference. The contract of transmission was entire; and solemn contract rights cannot be destroyed by a mere trick of pleading in denominating them torts, even if this changed the case. It is clear that we must look to the judicial decisions in a state to ascertain the law in all cases where they construe their own statutes. All statutes, without a solitary exception, existent or conceivable, must be interpreted by the rules of the common law. But the decisions of the courts of the state of the statute, right or wrong, must be final. It is for them tc say what is the true construction and scope of their own statute by their view of the common law, or by their own reasoning, sound or unsound. In Block v. McMurry, 56 Miss., 217 (31 Am. Rep., 357), our own court held a Sunday contract made here void because of our laws. But in McKee v. Jones, 67 Miss., 405 (7 So. Rep., 348), it held that a defendant sued in this state on a Louisiana Sunday contract, was bound because that state had no law against a Sunday contract. \Even public policy must yield to the law of the state of the contract, unless where the statutes of the forum forbid enforcement in its courts, or the matter is ..malum, m ses An action in tort for damages for breach of a contract made in one state, by citizens of that state, which cannot be maintained, either in that state or in the state of performance, because of the ruling of the courts of those states, cannot be maintained anywhere. )jTt seems right to charge the whole world with notice of the statute law of the place of the contract, but to charge citizens only with notice of the rulings of their court on the binding force of such a contract in commercial dealingsj The powers given appellee, by the Massachusetts statute, to impose “reasonable regulations,” as construed by her court of last resort, surely must govern all courts of all other states and nations. There has not been, and, it is probable, never can be, produced a case where two citizens of the same state contract in that state, and the courts of that state deny the right of action because of their construction of the powers allowable in the scope of their own state statute, that one of the parties, without relief in that state, may step across the border and find relief. That is the effort here, and it ought to fail. It is a misconception of a great and universal principle to hold that, because the Massachusetts court may have erred in its view of the common law in holding what was a “reasonable regulation” in the scope of the Massachusetts statute, therefore it did not bind all other courts. It is the conclusion arrived at, not the reasoning, wbicb binds. The former judgment is vacated, and the decision below is

Affirmed.

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Dissenting Opinion

Whiteield, O. J.,

delivered the following dissenting opinion:

The sole question on this reargument relied on by appellee is that this is an action ex contractu, and that the contract was made in Massachusetts, and that the doctrine that a contract valid by the statute law of the state where made is valid everywhere, governs. It is obvious, therefore, that if it be that the statute of Massachusetts does not determine the case, then the argument- wholly fails. The question for decision is, whether a regulation by a telegraph company, that there shall be no liability, beyond the amount paid, in the case of an unrepeated message, is not an attempt to stipulate against the consequences of the company’s own negligence. What is the Massachusetts statute ? It is a general act entitled “Of Telegraph Companies,” and is ch. 64 of the general statutes of Massachusetts passed in 1860. The telegraph as an agency of communication had just come into vogue. The supreme court of Massachusetts, in Ellis v. Telegraph Co., 13 Allen, 230, decided in October, 1866, calls it “this novel branch of human skill.” And the act of 1860 was passed to define in a merely general way what telegraph companies might do. Tor example, it provides (sec. 2) that they might construct lines along public highways, over waterways, etc., by erection of posts, piers, etc.; in sec. 3, that the mayor and aldermen of any places through which it might pass should specify where the posts should be erected, the kind and height of posts, etc.; in sec. 4, that damages may be awarded in the exercise of the right of eminent domain, etc., and how in detail; and other provisions fixed the capital to be subscribed, the limit of debt such companies might contract, not exceeding one-half of its capital stock actually paid in (a limitation that would startle these companies in this day) ; the liability of its officers, etc.— all provisions of the most general character, obviously due to the fact that the legislature of that state was then dealing with these companies for the first time. By sec. 10 it was provided: “Every company shall receive dispatches from and for other telegraph lines, companies, and associations, and from and for any person; and on payment of the usual charges for transmitting dispatches, according to the regulations of the company, shall transmit the same faithfully and impartially.” It is perfectly plain that this section does nothing at all except merely to authorize the telegraph company to “make rules and regulations.” Nor does it declare, in any way whatever, how it shall be determined whether such a rule of the company is reasonable or unreasonable. It is a mere naked power granted to the company to make rules. It is too plain for argument that those rules must be reasonable. The particular question involved here is simply and only this: How did the supreme court of Massachusetts determine that the rule was reasonable ? Did it find any guide or standard of reasonableness in the statute? Manifestly not. By what standard or test, then, did it decide the question whether it was a reasonable rule? Most manifestly by a resort to the general principles of the common law. That these rules must be reasonable, see what the court itself said at p. 235: “But we need not have recourse to these familiar and well-settled principles of the com-moa lav/ in order to establish the right of the owners and conductors of telegraphs to make rules and regulations by which to define and limit their duties and obligations in the transaction of the business which they assume to carry on. This* right is clearly recognized and affirmed by the statute already cited. By that corporations, associations, and individual owners of lines of telegraph doing business within this commonwealth are only required to transmit dispatches ‘according to the regulations’ which they may establish. It is hardly necessary to say that this provision does not confer the right to impose such conditions or restrictions in the mode of conducting the business as the self-interest or caprice of owners and conductors of telegraphs may dictate, but only those which are reasonable and proper in view of the nature of the business, and the risks and responsibilities which 'it involves, and the necessity of securing to the public due opportunities for a fair and reasonable use of the telegraph, as well as of affording due protection to the rights of those on whom are imposed the duty and burden of conducting the business for public accommodation. This is the true interpretation of the statute. Any other construction would lead to the result that the legislature conferred a power to establish unreasonable regulations for the conduct of a business of a quasi public nature — a conclusion which is manifestly absurd.” This quotation plainly shows that the court held that the company, and not the statute, made the rule, and that it was for the court to determine as a judicial question whether that rule was reasonable. Another observation is proper here, and that is this: That the language of the court we quote as to the right of owners of telegraph companies to make rules shows, and only shows, that the thing for which there was no need to resort to the common law was merely the right of the owners of telegraph companies “to make rules.” The court had been reasoning at p. 230 as to the right of “this novel branch of industry” to make rules for the regulation of its business in the abstract, and it had reached the conclusion that under the common law such company had the right to make rules and regulations. It then shows, in the passage quoted, that, if the common law had been silent, the statute specially conferred such mere general right to make- rules and regulations. That is absolutely all that the court said the statute had done, and a mere inspection of the face of the statute shows that this is precisely all that the statute did, to wit, confer upon telegraph companies the mere general power to make rules and regulations. Nowhere in the opinion of the court is it either expressly said, or in the most remote way intimated, that the statute itself had either made any regulation or furnished any test by which to determine the reasonableness of the regulations made by each company. Whether this regulation is reasonable, and by what standard it was to be determined whether it was reasonable, was the exact proposition involved in Ellis v. Telegraph Co. And now the crucial point in the reasoning is reached. What standard did the supreme court test the reasonableness of the rule by? By the statute? Plainly not, for the statute furnishes none. It is most manifestly by the general principle of the common law, and it is only necessary to read carefully the opinion of the court, pp. 231-238, inclusive, to see that they did decide the rule to be reasonable by a resort to the principles of the common law, and to them alone. They refer, for example, to the peculiar nature of the business of transmitting messages by electricity, to the fact that there can be no manual possession of the message, as in the ease of property ordinarily shipped by common carriers; that the message is wholly under the control and supervision of its owner while in its custody; to atmospheric disturbances and disarrangement of electrical apparatus, and the imperfections incident to the transmitting of sounds by electricity. From these and from like considerations they determined that the rule was reasonable that a telegraph company was not a common carrier according to the principles of the common law, and could not be held as an absolute insurer, and that this sort of stipulation, though a stipulation against negligence, was a reasonable stipulation, because of the differences existing between a telegraph company and a usual common carrier from the nature of their business. These are the reasons and principles by which the Massachusetts supreme court decided the reasonableness of this rule — the principles of the general common law — and by them alone. So, in Grinnell v. Telegraph Co., 113 Mass., 299 (18 Am. Rep., 485), the court again resorted not to the statute, buc to the general principles of the common law, to determine whether this rule was reasonable. Now, the question recurs, is the supreme court of this state bound by this decision of the Massachusetts supreme court holding this rule to be rea-sonable, when the statute did not prescribe tbe rule, did not furnish any test as to the reasonableness of the rule; when the only construction of the statute indulged in by the court was simply that it had conferred upon the company the mere general right to make rules; when it expressly held that the reasonableness of that rule was a question of judicial determination; and when it did determine that the rule was reasonable, by a resort to the principles of the common law, as the only test it could apply ? Or, to state the question simply and sharply, is the supreme court of Mississippi bound, as to what the principles of the common law are, by the view of the supreme court of Massachusetts as to what those principles are ? Is it not for the supreme court of each state tc determine for itself what the common law is ? And when some rule adopted by a telegraph company is to be held reasonable or unreasonable, according to the principles of the general common law, does not the supreme court of each state declare that rule reasonable or unreasonable, according to its own view of the principles of the common law applied to that rule? It would seem that to state the question is to answer it. That exactly, that precisely, neither more nor less than that, is the question involved in this case, treating the action as ex con-tractu. It would put this state in a most extraordinary attitude if it had to follow the interpretations of the principles of the common law as announced by the courts of forty-four other states. On the very same state of facts as to whether a rule of the ¡telegraph company was reasonable, we would have to hold one /wav in cases arising in those states holding it un-Vreasonable, and another way in cases arising in states holding it was held reasonable. Endless confusion would be the inevitable result of any such abdication of judicial power on the part of this court. Of course, if a contract made in another state is made by virtue of a statute \pf that state, the statute making such a contract valid, and the supreme court of that state construing it as valid under that statute, the courts of every other state whose positive law or public policy is not violated by that statute will treat such contract as valid. That is an elementary principle thoroughly recognized everywhere. But that is not this case. This statute did not prescribe this rule. It did not say that a telegraph company might provide against liability in case of unrepeated messages; it did not furnish any test by which to decide upon the reasonableness of such rule; it simply said the company might make rules, leaving the conrt to determine — as it did determine — the reasonableness of the rules by the well-settled principles of the common law. It is also to be carefully borne in mind that this court has decided by necessary implication in two cases, to wit: Allen’s case, 66 Miss., 549 (6 So. Rep., 461); Alexander’s case, 66 Miss., 161 (5 So. Rep., 397); 3 L. R. A., 71; 14 Am. St. Rep., 556, and directly in this case in the former opinion, that it is not competent for the telegraph company to adopt this rule, since it is nothing else than an effort to contract against the consequences of its own negligence. And since these decisions the constitution of this state has expressly declared (sec. 195) telegraph companies are common carriers, and hence liable as such; and further, that the decided weight of authority, and undoubtedly the better-reasoned cases, hold such a rule void, as unreasonable. Beference is made to this to show this, simply: That this stipulation, being one clearly violative of our public policy on this subject, as manifested both by judicial decisions and constitutional declaration, ought never to be upheld by this court, except in the single case of a contract made valid by the terms of a statute, which statute has been approved by the supreme court of the state. Such was the recent case of Kendrick v. Kyle, 78 Miss., 278 (28 So. Rep., 951). There the question involved was whether a certain rate of interest was usurious or not. That rate the different statutes expressly dealt with, and the supreme court of Tennessee held the particular statute involved valid as to the rate, the statute itself declaring the rate; and no public policy of this state was violated by the Tennessee statute or decision. That case would be analogous to this if this statute prescribed the rule, and the supreme court of Massachusetts had held the rule valid because the stat* ute had prescribed it, holding, also, the statute to be valid. The cases differ toto codo. The exception that no state supreme court will enforce a contract violative of its statute law or its public policy is as thorouo-hlv settled as the rule to which it is the exception, and it is essential to the proper exercise of judicial power by each supreme court. It is unnecessary to cite authorities. The doctrine is put with great clearness in the learned note to Gist v. Telegraph Co. (S. C.), 55 Am. St. Rep., 174, 775 (S. C. 23, S. E. 143), where it is said: “But the rule is subject to the exception that no nation or state is bound to recognize or enforce contracts made elsewhere which are injurious to its own citizens or subjects. The enforcement by one nation or state of contracts made under the laws of another rests on a principle of comity, which cannot be so far extended as to violate the public policy or positive legislation of the former.”

The suggestion has been made (not in the argument of counsel for appellee) that, because neither of the parties live in this state — -because no part of the telegraph line over which this message was transmitted traversed this state — -therefore, this court ought not to entertain this action. The-complete answer, however, to this objection is, that this is a purely transitory action, and, if the defendant was found here, it ought to answer, just as any other defendant in a transitory action found here ought to answer. We have nothing to do with the good taste of the proceeding. It is simply our duty to administer right between the parties according to our view of the principles of the common law.

p One final observation: The case of Forepaugh v. Railroad Co., 128 Pa., 225; 18 Atl., 503; 5 L. R. A., 508; 15 Am. St. Rep., 672, announces a proposition contended for very earnestly by otoe of the learned counsel for appellee, to wit, that there is no such thing as a general common law — that is to say, a body of law known as the “common laAv” — and that each state has its own peculiar common law, and that hence its construction of the reasonableness of the rule, according to what is thus curious-, ly called “its special and peculiar common law,” is binding upon all other states. This doctrine is utterly unsound. Th& correct view is stated in St. Nicholas Bank v. State Nat. Bank (N. Y.), 27 N. E., 851 (13 L. R. A., 243, 244), where the court say: “The defendant, however, claims that the contract with the plaintiff is to be treated as a Tennessee contract, and that by the law of that state it cannot be made liable for this loss. Upon the trial, for the purpose of showing the law of that state, it put in evidence a decision of the supreme court in the case of Bank of Louisville v. First Nat. Bank of Knoxville, 8 Baxt., 101 (35 Am. Rep., 691). In that case a bill of exchange, payable at the First National Bank of Knoxville, was sent by a New York bank to the Bank of Louisville for collection. It was transmitted by the Louisville bank to the Knoxville bank, was received by the latter, and was subsequently returned unpaid. The cashier of the Knoxville bank delivered the bill to a notary public, in good repute at the time, who failed to protest it, by reason of which the right of action against the, drawer was lost. The Louisville bank paid the amount of the bill to the New York bank, and then brought suit to recover against the Knoxville bank, and failed. It was held that 'where a bank receives a bill of exchange for collection, payable at a distant place, its liability is discharged by transmitting the same in due time to a suitable and responsible bank or other agent at .the same place of payment; and in such case the principal’s assent to the employment of a sub-agent is implied,’ and that, 'if a debt be lost by negligence of an agent to whom a bill of exchange is sent for collection, the principal or home bank (having complied with its duty, and not being liable to the holders) .cannot, by voluntarily discharging the claim of the payee, maintain an action on the case, for negligence, against the sub-agent. Such right accrues only to the holder or payee of the bill, under the circumstances.’ That decision was not based upon any statute law, but upon the principles of the common law, supposed to be applicable to the facts of the case. It did not make or establish law, but expounded the law, and furnished some evidence of what the law applicable to that case was— evidence which other courts might or might not take and receive as reliable and sufficient; and even the same court, upon fuller discussion and more mature consideration, might in some sub ■ sequent case refuse to take the same view of the law. There is no common law peculiar to Tennessee. But the common law there is the same as that which prevails here and elsewhere, and the judicial expositions of the common law there do not bind the courts here. The courts of "this state, and of other states, and of the United States, would follow the courts of that state in the constructions of its statute law. But the courts of this state will follow its own precedents in the expounding of the general common law applicable to commercial transactions, and so it has repeatedly held, Faulkner v. Hart, 82 N. Y., 413 (37 Am. St. Rep., 574); Swift v. Tyson, 16 Pet., 1 (10 L. Ed., 865); Oates v. Bank, 100 U. S., 239 (25 L. Ed., 580); Ray v. Gas Co., 138 Pa., 576; 20 Atl., 1065; 12 L. R. A., 290; 21 Am. St Rep., 922 (decided in Pennsylvania supreme court, January 12, 1891). We must, therefore, hold that the obligation resting upon the defendant was that which the principles of the common law, as expressed by the courts of this state, placed upon it.” And in 6 Am. & Eng. Ene. Lavy p. 283, where the editors say, “Yet, when the decision turns upon the construction of the common law in such sister state, the court will follow its own precedents in expounding the gen-l eral rules of the common law applicable to such transactions.” [There is a general body of law known as the “common law,” land each state supreme court is not only authorized, but is re-jouired, to determine what those principles are, in the application of any rule for itself, and is wholly unaffected by the view taken in that regard by any other state supreme court. This is as thoroughly settled as any doctrine can be — as thoroughly settled as the complementary doctrine that the decision of a state court construing a state statute, and holding a contract made under the provisions of that statute valid, is binding upon every other state supreme court whose public policy and whose statute are not thereby violatecíjl So far as a cipher message is concerned, the case of Shingleur v. Telegraph Co., 72 Miss., 1030 (18 So. Rep., 425); 30 L. R. A., 444; 48 Am. St. Rep., 604, settles the proposition that the company is liable in ease of failure to transmit correctly a cipher message. It would have been an idle performance for the court in that case to have indulged in the reasoning which it did, and to have rested the case upon the ground it did, if the court had thought the telegraph company not liable because the message was a cipher one. The reasoning in the Eose Case, 3 Abb. Prac. (N. S.), 408, is wholly unsatisfactory, and is opposed both by reason and the beskconsidered authorities. In this case, aside from the general principle, it was clearly proved that this telegraph company had been for several years engaged in the business of sending cipher messages for this appellant in its business, inviting this appellant to send these cipher messages about this cotton business, and knew fully the importance of the message so sent.

" Independently of this view, it is also clear that the appellan can recover not only in contract, but in tort. See Shingleur v Telegraph Co., 72 Miss., 1030 (18 So. Rep., 425); 30 L. R. A., 444; 48 Am. St. Rep., 604. The negligence occurred in Georgia. The breach occurred in Tennessee, by reason of the mistake made in Georgia. The message delivered was not the message appellant sent, but an altered message — altered by the mistake of the company’s office in Georgia. There is not only a breach of contract in the case, but a distinct tort — this alteration of the message and its delivery as altered. It is well observed by counsel that the failure to deliver the message at all would not liave caused the injury. The loss which here results from the tort is of a different character. If the message had been to buy wool at a stated price — say, 20 cents a pound — and the message had been altered, and delivered as altered, directing the purchase of cotton at the same price, it would be clear that the loss resulted from the tort, not from the breach of contract. The defendant cannot say that the plaintiff cannot recover for the tort, because there was a contract. Jj3oth rights may coexist, and arise from the same facta See the authorities in Shingleur v. Telegraph Co., 72 Miss., 1030 (18 So. Rep.. 425); 30 L. R. A., 444; 48 Am. St. Rep., 604. The former opinion of this court, delivered by Chief Justice Woods, rests the liability as well on the view that a tort was committed as that there was a breach of the contract. It also distinctly holds that the telegraph company is liable in case of a cipher message, and cannot make a valid, rule exempting itself from liability in case of an unrepeated message. These views are reaffirmed. I refer to the following authorities: Gillis v. Telegraph Co., 61 Vt., 461; 17 Atl., 736; 4 L. R. A., 611; 15 Am. St. Rep., 917; Pepper v. Telegraph Co., 87 Tenn., 554; 11 S. W., 783; 4 L. R. A., 660; 10 Am. St. Rep., 699; Telegraph Co. v. Short, 53 Ark., 434; 14 S. W., 649; 9 L. R. A., 744; Brown v. Telegraph Co., 111 N. C., 187; 16 S. E., 179; 17 L. R. A., 648; 32 Am. St. Rep., 793; Wertz v. Telegraph Co., 7 Utah, 446; 27 Pac., 172; 13 L. R. A., 510; Telegraph Co. v. Eubanks (Ky.), 38 S. W., 1068; 36 L. R. A., 711; 66 Am. St. Rep., 361. It is distinctly stated in the note to Brown’s case, 17 I,. R. A., 648, that the doctrine announced therein — the opposite doctrine to that in the Rose case — is in accordance with the most modem cases on the subject. The conclusion reached by the court, as announced by Chief Justice Woods, is sound, in my judgment. The members of the court all agree — treating the case as ex contractu — in the correctness of that opinion, in all respects, except as to the single proposition that the stipulation against liability for an unrepeated message is determined by the terms of the Massachusetts statute. My brethren think that statute covers it. I do not think the statute touches it, but that its reasonableness was determined by the Massachusetts supreme court, on the general principles of the common law, and that their judgment manifestly would have been the same if no statute had existed. There is no difference as to the proposition that there is no common law peculiar to Massachusetts, or to any state, and that this state supreme court should interpret the principles of the common law in accordance with its own precedents, and is not bound by the decision of any other state supreme court holding a contract valid, which contract depends upon the construction of the common law, and not upon the statute of another state. I fail to see how the fact that the parties live in Massachusetts affects the question at issue. There is but one question for solution: Did the Massachusetts statute prescribe this rule, or the test by which its reasonableness was to be determined? It is plain that the statute did neither. IIow, then, can this be said to be a case governed by that statute? The Massachusetts supreme court held the rule reasonable, not because it found the rule in the statute, not because it found any standard prescribed by the statute for determining whether the rule was reasonable, but because it thought it a reasonable rule by the principles of the common law. Cases holding that this court is bound by the construction of a contract by the supreme court of a sister state, as being valid, because the statute — the statute itself— makes the contract valid, have no application here.

“I regret the necessity of differing from my brethren, and nothing but strong conviction that their view is erroneous could constrain me to do so. I greatly fear the precedent established will return to plague us.”