187 Ind. 238 | Ind. | 1917
— Appellee sued appellant for the recovery of a penalty provided by statute of Indiana, in §§5780, 5781 Burns 1914, Acts 1885 p. 151, for failure to deliver a telegram “with impartiality and good faith, and in the order of time in which it was received.” Appellant also filed a second paragraph of complaint seeking to recover special damages; but this paragraph was dismissed before the trial.
The facts out of which this controversy grew are, in short, that the appellee was a party to litigation pending in Chicago; that he was represented by his attorney at Chicago and by his attorney at Fort Wayne. On the day preceding that on which said cause in Chicago was to be tried, plaintiff’s attorney in Chicago sent “collect” to plaintiff’s attorney in Fort Wayne a dispatch in the following words:
“Have Boegli and other witnesses at our office at eight a. m. Thursday.”
, This telegram was received by appellant’s office in Fort Wayne about five o’clock p. m. on the day on which it was delivered to appellant, and during appellant’s office hours, but because the attorney in Fort Wayne was not in his office until about 8:30'o’clock next morning, said telegram was not delivered until that hour, although said attorney was at his home in Fort Wayne during all of the time between the receipt of the telegram and the delivery, and said attorney’s address was given in the Fort Wayne city directory and in the telephone directory, and his home was connected by telephone.
The points made here are: (1) The penalty in this case cannot be recovered because the message was not prepaid.' (2) The penalty cannot be recovered because the contract for the transmission of the message was made out of this state. (3) Only the sender of a message can recover the penalty. (4) In the act of Congress of June 18, 1910 (1 Fed. Stat. Ann. Supp. [1912] 111-117; §§8563, 8566, 8569? 8574 U. S. Comp. gtat.
Appellant cites upon this proposition Western Union Tel. Co. v. Mossler (1884), 95 Ind. 29. This decision involved a contract made when the statute provided that the company shall “on payment or tender of the usual charges, according to the regulations of the company, transmit,” etc. The telegram in that case was sent “collect.” It was held that, as the sender “accepted the company’s waiver of payment in advance,” he “therefore waived the statutory penalty.” The statute referred to in said decision was amended in 1885. The amendatory statute, which continues in force, omitted the words above quoted, and provided for transmission “upon the usual terms” and the ruling in the Henley case was based upon the statute as so amended,, and governs the decision in this case.
It is held that an undisclosed principal in whose interest a contract is made for the transmission of a telegram may recover the penalty. Western Union Tel. Co. v. Troth (1908), 43 Ind. App. 7, 84 N. E. 727, and cases cited. See, also, discussion in Milliken v. Western Union Tel. Co. (1888), 110 N. Y. 403, 18 N. E. 251, 1 L. R. A. 281; Western Union Tel. Co. v. Schriver (1905), 141 Fed. 538, 72 C. C. A. 596, 4 L. R. A. (N. S.) 686. The facts disclose that the contract for this message was made by plaintiff through plaintiff’s agent in Chicago for the transmission to plaintiff, through plaintiff’s agent in Indiana, of the message in a matter connected with such agency, and for the sole use and benefit of the plaintiff. The paramount feature of the execution of said contract by appellant, for the benefit of said undisclosed principal, was the proper and diligent
We have not been referred to, nor have we found, a decision in the Indiana reports expressly deciding that the receiver who is also the sender of an interstate dispatch may recover; but we believe that to so hold is right, in view of the legal principle involved, and this holding is supported by a clear inference from cases somewhat similar. Western Union Tel. Co. v. Kinney (1886), 106 Ind. 468, 7 N. E. 191; Western Union Tel. Co. v. Fenton (1875), 52 Ind. 1.
This leads us to the conclusion that appellee is entitled to recover the statutory penalty, unless Congress has by enactment, or the Interstate Commerce Commission has by regulation, made under the power granted to the commission by Congress, so specifically regulated the delivery of interstate telegraphic messages as to exclude the power of the state to enforce its statute on the same subject.
We are therefore called upon to consider only whether Congress has passed an act directly superseding the power of the state. Neither the commerce clause of the United States Constitution, nor the fact that Congress has power to make provisions regulating interstate common carriers, including telegraph companies, renders invalid a state statute regulating the delivery of interstate telegrams until Congress, has acted, and by such action covered the specific matter governed by the state statute. Pittsburgh, etc., R. Co. v. State (1908), 172 Ind. 147, 87 N. E. 1034. The opinion of this court in the above cause was adopted by the Supreme Court of the United States in its general order of affirmance. See 223 U. S. 713, 32 Sup. Ct. 520, 56 L. Ed. 626. The opinion held valid what is commonly known as the “full crew act” of this state, and, among, other things, says of the act: “It may be permitted to stand until Congress sees fit to enter the field and actually legislate upon the precise subject-matter, in which event the statute in question would have to yield.”
In the case last above cited, in making a comparison between the Indiana “full crew act” and regulations by .Congress relating to interstate trains, the court announced rules which are applicable here in a like com
In its opinion in Western Union Tel. Co. v. James (1895), 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, which was an action for. recovery of a penalty for failure to deliver a telegram in the State of Georgia, which-had been deposited in another state for such transmission to Georgia, the Supreme Court of the United States, referring to the Georgia statute, said: “In one sense it affects the transmission of interstate messages, because such transmission is not completed until the message is delivered to the person to whom it is addressed,
“The statute in question is of a nature that is in aid of the performance of a duty of the company that would exist in the absence of any such statute, and is in nowise obstructive of its duty as a telegraph company. It imposes a penalty for the purpose of enforcing this general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would owe in the absence of such a statute. Can it be said that the imposition of a penalty for the violation of a duty which the company owed by the general law of the land is a regulation of or an obstruction to interstate commerce within the meaning of that clause of the Federal Constitution under discussion? We think not.” See, also, Chicago, etc., R. Co. v. Arkansas (1910), 219 U. S. 453, 460, 31 Sup. Ct. 275, 55 L. Ed. 290; Atlantic, etc., R. Co. v. Mazursky (1909), 216 U. S. 122, 30 Sup. Ct. 378, 54 L. Ed. 411; Western Union Tel. Co. v. Milling Co. (1910), 218 U. S. 406, 416, 31 Sup. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815.
It is held in Western Union Tel. Co. v. Bilisoly (1914), 116 Va. 562, 82 S. E. 91, that the act of Congress impliedly exempts telegraph companies from any penalty for negligence. The Indiana statute in question not only provides against what may be termed intentional
The Interstate Commerce Act, supra, was amended June 18, 1910. Since said amendment it has been held in quite a number of the states that by this amendment Congress has not only entered the field of regulation of
These decisions are to a great extent based upon Western Union Tel. Co. v. Brown (1913), 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. We understand the essence of this decision to be that a state may not enforce a liability or penalty provided by and peculiar to the state where an action is brought for negligence occurring in another state, or in the District of Columbia; the other state, or the United States, respectively, having the exclusive jurisdiction as to the amount and measure of recovery. And, further, this decision holds that whatever authority a state may possess over the delivery of interstate messages by telegraph companies within its limits, the state does not have power to regulate the delivery of messages in other states. There is not involved by either of these propositions a decision of the question as to whether under an act of Congress, or action of the Interstate Commerce Commission, the matter of interstate commerce has been so exclusively taken over as to render nugatory all authority as to the several states in reference thereto.
The decisions, based upon said amended act of Congress, also cite on this point the decision in Cincinnati, etc., R. Co. v. Rankin (1915), 241 U. S. 319, 327, 36 Sup. Ct. 555, 558, 60 L. Ed. 1022, and the following is quoted therefrom: “It cannot be assumed, merely because the contrary has not been established by proof, that an interstate carrier is conducting its affairs in violation of law. Such a carrier must comply with the strict requirements .of the Federal statutes or become subject to heavy penalties, and in respect of transactions in the ordinary course of business it is entitled to the presumption of right conduct.”
It is claimed that said decision supports a rule that
We do not so conclude from the decision in the Rankin case. In that case, the plaintiff, Rankin, had shipped over defendant’s road a carload of mules from Kentucky to Georgia, and had signed and accepted a through bill of lading which stated that it was a “contract for limited liability in the transportation of live stock at reduced rates,” and that, for the lowest rate provided, the liability for negligent injury to horses and mules was not to exceed $75 per head. The published freight rates provided an increased freight charge for a higher valuation. Some of the animals were killed in á wreck, and the shipper sued to recover at a valuation of $250 per head. The defendant answered that its' liability for negligence was limited, as shown by the contract set out in the complaint, because it had published and filed with the Interstate Commerce Commission its rules and regulations as to such rates and limitations, and the freight rate was chosen by the shipper.
Inasmuch as a contract limiting liability for negligence is not valid in that respect unless the carrier’s rules and regulations, as to limitation, are filed with the commission, it was argued that no federal question was presented in the above case, because there was no affirmative proof showing actual compliance by the road with the Interstate Commerce Act. In discussing whether a
Finding no error in the matters assigned, the judgment below is affirmed.
Note. — Reported in 115 N. E. 773. Telegraphs and telephones: (a) negligence in delivery of messages, action for penalty, 37 Cyc 1702, 1706; (b) statutes penalizing negligent handling of telegrams as regulation of interstate commerce, 2 Ann. Cas. 513, 21 Ann. Cas. 819, 36 L. R. A. (N. S.) 220; (c) right of addressee of telegram to sue for failure to deliver, 2 Ann. Cas. 398, 13 Ann. Cas. 356.