42 App. D.C. 398 | D.C. | 1914
delivered the opinion of the Court:
The applicable portions of the act of June 18, 1910, entitled “An Act to' Create a Commerce Court and to Amend the Act Entitled ‘An Act to Regulate Commerce,’ ” etc. [36 Stat. at L. 545, chap. 309, Comp. Stat. 1913, § 8563], read:
“All charges made * * * for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, - shall be just and reasonable, * * * Provided, That messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and ■different rates may be charged for the different classes of messages.”
It appearing that the business of the defendant is carried on between the States, as well as with foreign countries, and that the message in question was to be sent from this District to Louisiana, it is apparent that the above-quoted provisions of the act of 1910 at least control the relations of the sender of the message and the defendant. That the limitations printed on the message in question are reasonable and valid, so far as they affect the sender of the message, has been authoritatively determined. Primrose v. Western U. Teleg. Co. 154 U. S. 1, 38 L. ed. 883, 14 Sup. Ct. Rep. 1098. In that case the court observed: “By the regulation now in question, the telegraph company has not undertaken to wholly exempt itself from liability for negligence, but only to require the sender of the. message to have it repeated, and to pay half’ as much again as the usual price, in order to hold the company liable for mistakes or delays in transmitting or delivering, or for not delivering, a message, whether happening by negligence of its servants or otherwise.”
That messages such as the present, passing over telegraph lines extending through different States, or from one State or district, to another State or district, constitute a portion of commerce itself, and hence, when exercised, subject to the exclu
But it is not necessary to decide whether by this legislation Congress intended to take complete and exclusive possession of the subject, because the plaintiff does not base her right to re
. In Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 548, which was an-action for damages by the addressee of a telegram, there was 'a demurrer to plaintiff’s declaration. The sole question considered, therefore, was whether, in any event, a right of action accrued. This question was answered in the affirmative. The question now at issue was neither raised nor discussed- in the opinion of the court. But in Ellis v. American Teleg. Co. 13 Allen, 226, an action in tort by the addressee of a telegram, the precise question was in issue, and the court observed: “It is difficult to see how the plaintiff, who claims through the contract entered into by the sender of the message with the defendants, which created the duty and obligation resting on the defendants, can claim any higher or different degree of diligence than that which was stipulated for by the parties to the contract. Certainly a derivative or incidental right cannot be greater or more extensive than that which attached to the principal or source whence such right accrued or was derived.” In Stone v. Postal-Teleg. Co. 31 R. I. 174, 29 L.R.A.(N.S.) 795, 76 Atl. 762, which was an action in trespass on the case for negligence, brought by the addressee of a telegram, the court said: “Any rights which the plaintiff may have are based upon ^ and limited by the terms of the contract for transmission. The claim of the plaintiff that he has rights in the matter independent of this contract has no basis in reason. The defendant’s duty in the premises must be regulated by its contract; not only its duty to the sender, but to this .plaintiff. The American cases permit the plaintiff, as the receiver of the telegram, to come in and avail himself of the defendant’s express and implied obligations arising under the contract; but the plaintiff’s rights can be no greater than those of the party to the contract.”
What “public duty” wras imposed upon the defendant? It wTas its duty to receive and transmit with reasonable promptness the message addressed to the plaintiff, provided the sender complied with such conditions as the defendant was authorized to impose. The conditions which it in fact imposed have been held just and reasonable, as we have seen. The sender, knowing those conditions, and knowing that there was greater liability to error in transmitting an unrepeated than a repeated message, nevertheless elected the former mode of transmission, and paid according to the service to be rendered. But, it is insisted, the addressee had nothing to do with the negotiation of those terms. While, in a literal and technical sense, this undoubtedly is true, in the real sense the company was to serve both the sender and addressee upon certain terms and conditions. Some one had to negotiate those terms with the defend
Reversed and remanded.