Western Union Telegraph Co. v. McDavid

CONNER, C. J.

Appeliee recovered a judgment in the sum of $250 on the ground of negligence on appellant’s part in the failure to correctly transmit a telegram from Abilene, in the state of Texas, to New Orleans, in the state of Louisiana. The court specifically found that appellant’s transmitting agent at Abilene was guilty of negligence as charged, and it is not questioned that as a proximate result thereof appellee was damaged in the amount of the judgment.

The telegram was written upon one of appellant’s blank forms on the back of which, among other provisions, was one to the effect that the appellant company should not be liable beyond the cost of transmission for damages for mistakes or delays in transmission unless, in order to avoid delays or mistakes, the message was repeated, and it was alleged and shown that the message in question was unrepeated. Appellant pleaded another provision of the contract to the effect that the company should not be liable for damages for mistakes in transmission “whether caused by the negligence of its servants or otherwise beyond the • sum of $50.00.”

[1] Appellant’s sole contention on this appeal from the judgment mentioned is to the effect that, inasmuch as it is undisputed that the message was an interstate message, and inasmuch as it was also undisputed that the message was unrepeated, the judgment, by force of the provisions of the contract poted, should have been for 75 cents, the cost of the message, or at least in no event in excess of $50. It is insisted that the Congress of the United States, by the act of June 18, 1910, c. 309, 36 Stat. 539, assumed charge of regulating the field of interstate communication by telegraph, and thereby removed from the field of state regulation any power of the state to interfere therewith, and, in addition to other cases, • particular emphasis is laid upon a late decision by the Interstate Commerce Commission. The decision referred to, viz., Cultra et al. v. Western Union Telegraph Co., decided May 17,1917, and reported in 44 Interst. Com. Com’n R. 670, seems to be very closely in point and to sustain appellant’s contention. While the opinions of the commission interpreting the Interstate Commerce Acts are entitled to great respect from the state courts called on to construe the act (Greenwald v. Weir, 130 App. Div. 696, 115 N. Y. Supp. 311), yet their decision on the question involved in this appeal cannot be said to be authoritative. See Interstate Commerce Commission v. C., N. O. & T. P. Ry. Co. (C. C.) 64 Fed. 981, where it is stated, among other things that—

“The commission is not a court but an administrative body, exercising powers which are quasi judicial, and its decisions are entitled to the highest respect of federal courts.”

We think, therefore, that we must be guided by our own decisions hereinafter cited, they, as we interpret them, not being in conflict on the point here involved with the decisions of the Supreme Court of the United States.

[2] The - act of Congress of the United States June 18, 1910, undoubtedly fixed the status of appellant as that of common carrier, from which it must he conceded that appellant was not only subject to the requirements of the Interstate Commerce Acts, but is also entitled to have its liabilities determined by the law as administered by thp United States Courts. But in the case before us, as already noted, it is unquestioned that appellant was guilty of negligence, and, while doubtless decisions of contrary import can be found, we think the clear weight of authority, both by the decisions of the Supreme Court of the United States, as well as of our own and sister States, generally uphold the common-law doctrine that a common carrier will not be permitted to relieve himself from the consequences of negligence on his part, or on the part of his servants or employes. York Mfg. Co. v. Ill. Cent. Ry. Co., 3 Wall. 107, 18 L. Ed. 170; N. Y. C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 23 L. Ed. 872: Hart v. Pa. Ry. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Western Union Tel. Co. v. Bailey, 108 Tex. 427, 196 S. W. 516; Western Union Tel. Co. v. Schoonmaker, 181 S. W. 263, writ of error refused.

As it seems to us, the two cases last cited are controlling and especially in point here. In Western Union v. Bailey, supra, which was decided by our own Supreme Court, it was specifically held, among other things, that a stipulation of the telegraph company limiting its liability for damages for nondelivery of a message, whether caused by the negligence of its servants or otherwise, to $50, was void and not enforceable in this state, notwithstanding the existence of the interstate commerce laws. And in the case of Western Union Tel. Co. v. Schoonmaker, above, which was by the El Pasd Court of Civil Appeals, it was held, among other things, in an opinion by Mr. Justice Walthall, that a provision of the contract for the transmission of an interstate telegram that the company should not be liable beyond the amount received for sending the message would not protect the company from the full consequences of negligence.

Regardless, therefore, of other considerations that might' be suggested, we think it must be here held, on the authority of the cases last mentioned, that the judgment in this case should be affirmed.

<Ss»For other cases see same topic and KEY-NÜM BER in all Key-Numbered Digests and Indexes