143 N.E. 529 | Ohio | 1924
The demurrer to the second and third defenses of the answer squarely presents the question of the force and effect of the provisions placed by the telegraph company upon the back of the telegraph blanks furnished by it to its customers, and to which provision reference is made on the face thereof.
It is to be observed that the provision set forth in the second defense limits the liability of the company for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message to the amount received for sending the same, which is practically an exemption from all liability, and that a further provision, the one set forth in the third defense of the answer, *143 stipulates that in any event the company shall not be liable for mistakes or delays in the transmission of such message, whether caused by the negligence of its servants or otherwise, beyond the sum of $50.
Concededly the message involved in this transaction was an unrepeated message, and it is manifest that both of these stipulations, set up by way of defense, have reference to an unrepeated message. The great majority of the states of the Union consistently held invalid such stipulation wholly exempting the company from liability for damages resulting from its negligence, whether the message in question was interstate or intrastate, until passage of the amendatory act of Congress, June 18, 1910 (36 Stats. at L., 544; Section 7884 et seq., Barnes' Fed. Code; Section 8563 et seq., U.S. Comp. Stats.,) whereby interstate telegraph messages were placed under the control of the Interstate Commerce Commission. Congress thereby took exclusive control of interstate telegraphic business, and the holding of the Supreme Court of the United States inWestern Union Telegraph Co. v. Brown,
Since the decision of Davidson v. Graham,
"(1) While a telegraph company may, by special agreement, or by reasonable rules and regulations, limit its liability to damages for errors or mistakes in the transmission and delivery of messages, it cannot stipulate, or provide, for immunity from liability, where the error, or mistake, results from its own negligence. Such a stipulation, or regulation, being contrary to public policy, is void.
"(2) Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence."
The conclusion of the court was based upon its holding that any stipulation or regulation, by which the company undertook to relieve itself of the duty *145 to exercise the skill and care which a careful and prudent man would exercise under the circumstances, was contrary to public policy and consequently void. In that case a judgment rendered against the company, amounting to some $1,200, was affirmed.
Since the decision of the Griswold case, the question of the validity and effect of the provisions limiting liability appearing on the telegraph blanks used by the Western Union Telegraph Company has been before this court in two other cases, which, though unreported, indicate the court's adherence to the rule announced in the Griswold case. The first is that of Western Union Telegraph Co. v. Priddy,
"The great weight of authority as disclosed by the decisions in the various states is, however, apparently to the effect that, in so far as the telegraph company seeks to relieve itself from liability for its negligence, such a stipulation is against public policy, and void."
However, we refer to one of the most recent cases in point, that of Shawnee Milling Co. v. Postal Telegraph Cable Co.,
"In conducting its intrastate business a telegraph company may make reasonable stipulations limiting its liability, but in the absence of positive or permissive statutes governing the subject, the reasonableness of any such stipulation is a question for judicial determination.
"A stipulation, limiting a telegraph company's liability in damages for an error in transmission of a telegram to a mere return of the rate exacted for sending it, is unreasonable."
The grounds upon which are based the decisions of the courts of the various states holding such stipulations void and unreasonable have been thus summarized in Jones on Telegraph and Telephone Companies (2d Ed.), Section 377. Such stipulations may be considered as a mere device for avoiding liability for acts of their own negligence *147 or willful wrong, and they should not be permitted to enforce any regulation or contract, by means of which they may relieve themselves for any loss caused by their own negligence, or that of their servants. Any rule which seeks to relieve them from exercising their employment with diligence, skill, and integrity contravenes public policy, and whenever they attempt to avoid these duties they do so at the expense of and injury to their patrons.
In a comparatively recent case, Baltimore Ohio Rd. Co. v.Hubbard,
"It is not a contract of exemption from liability for the negligence or wrongful conduct of the company or its employes, and its terms cannot be construed to provide for any such exemption. If it did undertake to so provide, it would be condemned as invalid by a uniform current of authority. A common carrier cannot save itself from liability for its negligence and wrongful acts, by any contract to that effect. * * * The railroad *148 company is not striving to escape payment of any sum on account of its negligence, but to limit the amount of recovery to an agreed valuation, in case of loss or damage as the result of its negligence, or otherwise. * * * The shippers, under this contract, * * * obtained a low rate of transportation for which they were willing to allow the carrier to place a money limit on its liability. It is not a stipulation to exempt from liability for negligence, but a limit on the amount of liability for which the carrier should respond in case of loss or damage."
And authorities are cited supporting that proposition.
It must be borne in mind that the second and third defenses in the case at bar were disposed of upon demurrer. In the alleged stipulation of the contract, set up in the third defense, it clearly appears that the valuation of the message was stated to be $50, and the rate charged was based upon that valuation. Upon the submission of the case to this court it was argued that under the provisions of Sections 614-16 and 614-18, General Code, the entire matter of rates, classifications, and rules and regulations governing the same, is under the jurisdiction of the Public Utilities Commission of the state, and that the defendant having filed its schedules showing all rates, classifications, rules and regulations, etc., in compliance with those provisions, and the stipulations set forth in the second and third defenses being a part thereof, such schedules must govern and control the transaction involved in this case, the contention of counsel being that our statutory provisions conferring *149
certain jurisdiction upon the Public Utilities Commission are analogous to the federal law conferring similar jurisdiction upon the Interstate Commerce Commission as to interstate messages, and that the decisions of the Supreme Court of the United States in the case of Western Union Telegraph Co. v.Esteve Brothers Co.,
For the reasons stated we hold that the trial court was in error in sustaining the demurrer to the third defense, and that the judgment of the Court of Appeals, in so far as it affirmed that ruling, was erroneous. The judgment is therefore reversed and the cause remanded to the court of common pleas, with direction to proceed in accordance with this opinion.
Judgment reversed.
ROBINSON, JONES and DAY, JJ., concur.
WANAMAKER, J., not participating. *150