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Its aģents, had been guilty of gross negli- | Illinois the court says:17 “On the question yence and those regarding wbich, the negli whether the regulation requiring messages yeuce complained of had been of a less to be repeated, printed on the blanks of the inarked character. A distinction certainly company on which a message is written, is a difficult to make where the facts upon which contract, we held that it was not a contract it is to be based are entirely in the exclusive binding in law, for the reason that the law possession of the defendant telegraph com imposed upon the companies duties to be pany.

performed to the public, and for the perPossibly the clearest and most logical formance of which they were entitled to a statement of the law in jurisdictions in wbich compensation fixed by themselves and which the validity of such stipulations is upbeld is the sender had no choice but to pay, no that of Hare, J., in the case of Passmore v. matter how exorbitant it might be. Among Telegraph Co.16 Here the learned judge these duties we held was that of transmitting says: “A railway, telegraph or other com messages correctly; that the tariff paid was pany charged with a duty which concerns the the consideration for the performance of this public interest cannot screen themselves duty in each particular case, and when the from liability for negligence; but they may charges were paid the duty of the company prescribe rules calculated to insure safety began, and there was, therefore, no conand diminish the loss in event of accident, sideration for the supposed contract requiring and declare that, if these are not observed, the sender to repeat the message at additional the injured party shall be considered in de cost.'' fault, and precluded by the doctrine of con In denying the validity of stipulations of tributory negligence. The rule must, how tbis nature, the tendency, however, has been ever, be such as reason, which is said to be to base the decision, not upon the lack of the life of the law, can approve, or at least contract, but avoiding the contract entirely, such as it need not condemn. By no device upon the ground of public policy.18 In the can a body corporate avoid liability for case of Ayer v. Telegraph Co.,'' Emery, J., fraud, for willful wrong, or the gross negli says: “Is such a stipulation, in the contract of glence which, if it does not intend to transmission, valid as a matter of contract asoccasion injury, is reckless of consequences, sented to by the parties, or is it void as against and transcends the bounds of right with full public policy? We think it is void. Teleknowledge that mischief may ensue. Nor, graph companies are quasi-public servants. as I am inclined to think, will any stipulation They receive from the public valuable franbe valid which has the pecuniary interest of chises. They owe the public care and dilithe corporation as its sole object, and takes gence. Their business intimately concerns a safeguard from the public without giving the public. * * * It is essential for the anything in return. But a rule which, in public good that their duty of using care and marking out a path plain and easily accessi diligence be rigidly enforced. They should ble, as that in which the company guarantees no more be allowed to effectually stipulate that every one shall be secure, declares that if for exemption from this duty than should a any man prefers to walk outside of it they will carrier of passengers, or any other party enaccompany him, will do their best to secure gaged in a public business. and protect him, but will not be insurers, This rule does not make telegraph oomwill not consent to be responsible for acci panies insurers. It does not make them dents arising from fortuitous and unexpected answer for errors not resulting from causes, or even from a want of care and their negligence. It only requires the perwatchfulness on the part of their agents, may formance of their plain duty. It is no bardbe a reasonable rule, and as such upheld by the courts."

17 Tyler v. Teleg. Co., 60 ni. 439, 74 III. 170, 171;

Teleg. Co. v. Daughtry (Ala.), 7 South. Rep. 660. Of decisions to the contrary, there are

18 Sweatland v. Teleg. Co., 27 Iowa, 433; Teleg. Co. many, and the reasons for which the validity v. Griswold, 37 Ohio St. 301; Teleg. Co. v. Krall, 28 of such stipulations is denied are several. In Kan, 679, 17 Pac. Rep. 309; Teleg. Co. Howell, 38

Kan. 685, 17 Pac. Rep. 313; Teleg. Co. v. Short (Arki), 16 9 Phila. 90, affirmed 78 Pa. St. 238; Teleg. Co. v. 14 S. W. Rep. 649. Stevenson, 128 Pa. St. 442, 455.

1979 Me. 497.

ship upon them. They engage in the busi transmitting or delivering dispatches,">20 and ness voluntarily. They have the entire con the courts have repeatedly declared stipulatrol of their servants and instruments. They tions in telegraph blanks to be void ;el a siminvite the public to intrust messages to | ilar statute being in force in Nebraska.22 them for transmission. They may insist Such statutes have been found, in practice, upon their compensation in advance. Why, to work well. Of late years competition bas then, should they refuse to perform the | done much to reduce the tolls charged for common duty of care and diligence? Why | the transmission and delivery of telegraphic should they make conditions for such , messages. It is, at least, questionable performance? Having taken the message whether it were not better, in the absence of and the pay, why should tbey not do all federal control, that uniform statutes should tbings (including the repeating) necessary be enacted in the several states similar to for correct transmission ? Why should they that of Indiana, providing, in addition, the insist on special compensation for using any maximum rate per mile, or fraction thereof, particular mode or instrumentality as a for telegrapbic transmission per word, such guard against their own negligence? It rate to be based upon the present generally seems clear to us that having undertaken prevailing charges. Such action would, at the business they ought without qualifica least, simplify the entire question. Under tion to do it carefully, or be responsible for the present decisions, the sender's position their want of care.

varies in accordance with the jurisdiction Surely, of all the arguments advanced for within which he finds himself at the time he and against the validity of stipulations, delivers his message to the telegraph comlimiting liability, in telegraph blanks, this is pany for transmission. the most powerful, and yet it is not uvas In considering the right of the receiver to sailable. There are many messages wholly recover damages against a telegraph comlacking in commercial value, as to pany, in cases where stipulations limiting the which extreme baste, or extraordinary company's liability have been incorporated care in transmission and delivery is in the contract of transmission, there can be not essential, messages wherein error is of no privity of contract between the parties no particular moment in so far as actual dam and, consequently, the stipulations cannot be age to the sender or receiver is concerned ; interposed as a defense to an action by the if, as the decision in this case would seem to receiver. If we regard the telegraph comindicate, the telegraph company is to be per pany as the agent of the sender, the maxim mitted to charge rates commensurate with the respondeat superior must apply, but the necessity of repetition to insure absolute cor better opinion would seem to be that the rectness, the sender of the non-commercial company is in no proper sense to be regarded message is practically paying for insurance as the agent of sender or sendee,23 There is upon something, the value of which he will a decision to be found 24 holding that the be unable to measure in damages. That the party interested in the dispatch is the real commercial message may be absolutely pro contracting party ; we cannot regard this as tected, the tolls upon the dispatch of a purely other than a fiction, utterly untenable. It personal or social nature must be increased. would seem that the sendee's proper remedy We do not think the solution of the question is in an action on the case, an action ex lies this way, but rather in regarding tele delicto for the misfeasance of the agent graph companies as common carriers, sub of the telegraph company in sendject to all the liability of that class, and per ing an altered message. It has been held mitted to qualify their general liability by that the tort, in such instances, is not of such special contract with their customers as to 201 G. & H. 611, sec. 2. valuation.

21 Teleg. Có. v. Ward. 23 Ind. 377; Teleg. Co. v. In Indiana the matter has been regulated

Buchanan, 35 Ind. 429; Teleg. Co. v. Meek, 49 Ind.

53; Teleg. Co. v. Fenton, 52 Ind. 429. by statute enacting that “Telegraph. com

22 Teleg. Co. v. Lowry, 32 Neb. 732. panies shall be liable for special damages oc- 23 Shingleur v. Teleg. Co. (Miss.), 18 S. W. Rep. casioned by failure or negligence of their

425; Teleg. Co. v. Brown (Ind.), 8 N. E. Rep. 171;

Teleg. Co. v. Hope, 11 Ill. App. 289. operators or servants in receiving, copying, 24 De Rutte v. Teleg. Co., 30 How. Pr. 403.

a nature as to require that malice be the gist believe that the stipulations in a telegrapb of the action.25 The great majority of text blank, limiting the liability of a telegraph writers have, as a rule, based such recovery company for negligence or error, are void as upon the duty which the telegraph company, against the receiver, wbo has suffered detriin its quasi-public character, owes to anyone ment by reason of acceptance of the incor. beneficially interested in the message, 26 and rect as correct; and we regard tbe receiver's decisions are to be found in which the same proper remedy as an action ex delicto for view is taken.27 We are not prepared to fully damages because of the misfeasance of the accept this view. It would seem better law telegraph company or its agents. to permit the receiver to recover such dam Chicago, Ill. G. C. HAMILTON, LL, M. ages as he may have sustained solely on the ground that the telegraph company has been QUARANTINE - EXCLUSION OF ANIMALS guilty of a tort to his detriment and we do FROM OTHER STATE-REGULATION OF not apprebead that the presence of stipula

COMMERCE tions limiting liability, in the contract of

SMITH v. ST. LOUIS & SOUTHWESTERN transmission, would prove a bar to such re.

RAILWAY COMPANY OF TEXAS. covery. Upon tbis point, the court in De la

Supreme Court of the United States, April 22, 1901. Grange v. Telegraph Co.,28 says: "The

1. Quarantine regulations established by the gor. proposition that the defendants are liable, if ernor of the state on recommendation of a live stock at all, only in case the message is repeated as sanitary commission in pursuance of Tex. Rev. Stat.

1895, art. 50480, whereby the importation of all cattle contained in the printed conditions, can be

from the state of Louisiana until the 15th day of the invoked only against the sender of tbe mes. following November is probibited, because the live sage, if against any; for it is his message,

stock commission had reason to believe that antbrax

bad or was liable to break out in that state, are a his language that is to be transmitted, and it

proper exercise of the police power of the state. is only known to the receiver when delivered 2. The presumption wbich the law attaches to tbe and as delivered. He is to be guided by, or acts of public otticers exists in favor of quarantine

regulations established by the governor on the informed by what is delivered to him, and he

recommendation of a live stock sanitary commission, has no opportunity to agree upon any such with respect to the sufficiency of the information on condition before delivery." If the stipula

which the regulations were adopted.

3. Proper quarantine regulations restricting the tions be relied upon as a defense to such an

importation of cattle from another state on account action in tort for misfeasance, sufficient of the danger of disease do not make unconstitutional notice of the necessity for the repetition of

regulations of commerce. the message, in order to hold the telegraph Statement by Mr. Justice McKenna: This case company liable for negligence or error, must involves tbe constitutionality of certain quaranbe brought home to the receiver where he

tine regulations of the state of Texas. The laws

of Texas provide for the creation of a live has accepted an incorrect message as correct

live stock sanitary commission, consisting of to bis detriment.29 It may be that in time,

three members appointed by the governor, and common knowledge, that such stipulations prescribe their duty. The governor of the state are ordinarily incorporated in the blanks of issued the following proclamation: telegraph companies, will be held to furnish

The Texas live stock commission having reason

to believe tbat cbarbon or anthrax bas or is liable constructive notice of the necessity of having

to break out in tbe state of Louisiana, from tbis a telegraphic dispatch repeated in order to

time forth until the 15th day of November, 1897.no insure sender or receiver against negligence cattle, mules or horses are to be transported or or error on tbe part of the telegraph com driven into the state of Texas from the state of papy; or such knowledge being general, the

Louisiana. The live stock sanitary commission

of tbe state of Texas hereby orders that any violareceiver will, at least, be put upon bis in.

tion of any of the aforesaid rules and regulations quiry. We do not venture an opinion upon

by moving of any cattle, mules or borses out of this hypothetical condition of affairs; we do

Louisiana into the state of Texas, is contrary to

said rules and regulations, and shall be an 25 Teleg. Co. v. Dryburg, 35 Pa. St. 298.

offense, and punisbable as provided by the laws 2 Grey Com. Tel. sec., 78; Thomp. Elect. secs. 427,

of the state of Texas. 428, 430, 448; Bigelow Torts, p. 614 et seq. 27 Rose's Case, Allen's Tel. Case p. 340; Allen's

In consequence of tbis proclamation tbe railCase, 66 Miss. 549.

way company refused to deliver certain cattle to 97 25 La. Aun. 383, 385.

their owners, of whom the plaintiff in error was 39 Harris v. Teleg. Co., 9 Pbila. 88.

| one, which it bad received as freigbt from a c08

Decting carrier, and which had been delivered to Such a right can only arise from a vital necessity the latter in the state of Louisiana. The facts, or for its exercise, and cannot be carried beyond the as many of them as is necessary to state, are as scope of tbat necessity. When a state statute, follows:

limited to provisions pecessary and appropriate The shipment of cattle was made upon a to that object alone shall, in a proper controtbrough bill of lading issued by the St. Louis & versy, come before us, it will be time enough to Southwestern Railway Company, at Plain Deal. decide that question." ing, La., for Fort Wortb, Tarrant county, Texas, In Hannibal & St. J. R. Co. v. Husen, 95 U. and was a through and continuous shipment. The S. 465, 24 L. Ed. 527, a statute of Missouri which cattle arrived at Fort Worth on the 28th of Au provided that “no Texas, Mexican, or Indian gust, 1897. The owners were ready to receive cattle shall be driven or otherwise conveyed into them, and tendered the amount of freight due or remain in any county in tbis state between the thereon. The tender was rejected, and the de. 1st day of March and the 1st day of November in livery of the cattle refused. Tbe cattle remained each year, by any person or persons whatsoever," in the pens of the plaintiff in error, the stock was beld to be in conflict with the clause of the yards at Fort Worth refusing to receive them on constitution which gives to congress the power account of the proclamation of the governor, and to regulate interstate commerce. permission, wbicb was asked by the railway com The case was an action for damages against the pany of the live stock sanitary commission, to de. railroad company for bringing cattle into the liver them to their owners, was also refused on state in violation of the act. A distinction was account of the governor's proclamation. There made between a proper and an improper exertion after tbe railway company shipped tbe cattle back of the police power of the state. The former was to Texarkana, to the line of railway from wbich confined to the prohibition of actually infected or they were received, by which line they were diseased cattle and to regulations not transcendreturned to Plain Dealing, and there tendered to ing such prohibition. The statute was held pot the sbippers, who refused to receive them. There to be so confined, and hence was declared invalid. upon they were sold, after proper advertising, The relation of the police power of a state and and the proceeds of the sale, less pasturage at the power of congress to regulate commerce Plain Dealing, were tendered to the owners, came up again in Bowman v. Chicago & N. W. which was also refused.

R. Co.,/125 U. S. 465,31 L. Ed. 700, 1 Inters. Com. Mr. Justice McKenna, after making the forego Rep. 823, 8 Sup. Ct. Rep. 689, 1062. The principle ing statement, delivered the opinion of the court: which underlies both powers and the range and

To what extent the police power of the state operation of those powers was considered. The may be exerted on traffic and intercourse with the action was against tbe railroad company for restate, witbout conflicting with the commerce fusing to transport beer from Chicago to Marclause of the constitution of the United States, sballtown, in Iowa. The refusal was attempted has not been precisely defined. In the case of Hen to be justified under a statute of Iowa against derson v. New York, 92 U. S. 259, sub, nom. Hen traffic in intoxicating liquors and the conveyazce derson v. Wickham, 23 L. ed. 543, it was held of the same by an express or railway company that statute of the state, wbich, aiming to l into the state, except under certain conditions. secure indemnity against persons coming from The statute was decided to be a regulation of foreign countries becoming a charge upon the commerce,-to be not within the police power of state, required shipowners to pay a fixed sum for the state, and therefore void. Leisy v. Hardin, each passenger,-that is, to pay for all passen 135 U. S. 100, 34 L.Ed. 128, 3 Inters. Com. Rep. gers,-not limiting the payment to those who 36, 10 Sup. Ct. Rep. 681, is of the same general might actually become such charge,- was void. character, and need not be commented upon. See Whether the statute would bave been valid if so also Scott v. Donald, 165 11. S. 59, 41 L. Ed. 633, limited was not decided.

17 Sup. Ct. Rep. 265. Io Chy Lung v. Freeman, 92 (*. S. 278, 23 L. In Scbollenberger v. Pennsylvania, 171 U. S. l, Ed. 550, a statute declaring ibe same purpose as 43 L. Ed. 49, 18 Sup. Ct. Rep. 757, some prior the New York statute, and apparently directed cases were reviewed and the court, speaking by against persons mentally and physically ipfirm, Mr. Justice Peckham, said: and against convicted criminals and immoral “The general rule, to be deduced from the dewomen, was also declared void, because it im cisions of this court is tbat a lawful article of posed conditions on all passengers, and invested commerce cannot be wholly excluded from ima discretion in officers which could be exercised portation into a state from another state wbere it against all passengers. The court, by Mr. Justice was manufactured or grown. A state has power Miller, said:

to regulate the introduction of any article, includ"We are not called upon by this statute to decide ing a food product, so as to insure purity of the for or against the rigbt of a state, in tbe absence article imported, but such police power does not of legislation by congress, to protect herself by include the total exclusion even of an article of necessary and proper laws against paupers and food. copyicted @riminals from abroad; nor to lay In Minnesota v. Barber, 136 U.S. 313, 34 L.Ed. down the definite limit of such right if it exist. | 453, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, it was held that an inspection law relating to an the state any Texas cattle, or any Mexican cattle, article of food was not a rightful exercise of the or Indian cattle, between March 1st and Decempolice power of the state, if the inspection pre ber 1st in any year, no matter whether they are scribed was of such a character, or if it were bur free from disease or not, no matter whether they dened with such conditions, as would wholly may do an injury to the inhabitants of the state prevent the introduction of the sound article from or not; and if you do bring them in, even for the other states. This was held in relation to the purpose of carrying them through the state withslaughter of animals whose meat was to be sold out unloading them, you shall be subject to as food in the state passing the so-called inspec- | extraordinary liabilities.' P. 473, L. Ed. 531. Such tion law. The principle was affirmed in Brimmer a statute, the court held, was not a quarantine v. Rebman, 138 U. S. 78, 34 L. Ed. 862, 3 Inters. law, nor an inspection law, but a law which interCom. Rep. 485, 11 Sup. Ct. Rep. 213, and in Scott fered with interstate commerce, and therefore, v. Donald, 165 U. S. 58, 97, 41 L. Ed. 632, 644, 17 invalid. At the same time the court admitted Sup. Ct. Rep. 265."'.

unhesitatingly tbat a state may pass laws to preThe exclusion in the case at bar is not as com - vent animals suffering from contagious or infecplete as in the cited cases. That, however, makes tious diseases from entering within it. P. 472, L. no difference if it is within their principle; and Ed. 530. No attempt was made to show that all their principle does not depend upon the number Texas, Mexican, or Indian cattle coming from the of states wbich are embraced in the exclusion. It malarial districts during the months mentioned depends upon whe:her the police power of the were infected with the disease, or that such cattle state has been exerted beyond its province, were so generally infected that it would have exerted to regulate interstate commerce-exerted 1 been impossible to separate the healthy from the to exclude, without discrimination, the good and diseased. Had such proof been given, a different the bad, the healthy and the diseased, and to an question would have been presented for the conextent beyond what is necessary for any proper sideration of the court. Certainly all animals quarantine. The words in italics express an im thus infected may be excluded from the state by portant qualification. The prevention of disease its laws until they are cured of the disease, or at is the essence of a quarantine law. Such law is least until some mode of transporting them withdirected, not only to the actually diseased, but to out danger of spreading it is devised." what has becoine exposed to disease. In Morgan's In Missouri, K. & T. R. Co. v. Haber, 169 U.S. L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 613, 42 L. Ed. 878, 18 Sup. Ct. Rep. 488, the Husen 118 U.S. 455, 30 L. Ed. 237, 6 Sup. Ct. Rep. 1114, case was again commented upon, and what the the quarantine system of Louisiana was sustained. law of Missouri was and was not was again deIt established a quarantine below New Orleans, clared. A statute of Kansas, however, which provided health officers, and fees for them, to be made any person who shall;drive or ship into the paid by the ships detained and inspected. The state "any cattle liable, or capable of commusystem was held to be a proper exercise of the nicating Texas, splenetic or Spanish fever to any police power of the state for the protection of domestic cattle of this state shall be liable * * * health though some of its rules amounted to reg

for * * * damages," was held not to be a regulations of commerce with foreign nations and ulation of commerce. It was also held that the among the states. In Kimmish v. Ball, 129 U. S. statute was not repugnant to the act of congress 217, 32 L. Ed. 695, 2 Inters. Com. Rep. 407, 9 Sup. of March 29, 1884 (23 Stat. at L. 31, ch. 60). Ct. Rep. 277, certain sections of the laws of Iowa known as the animal industry act. were passed on. One of them imposed a penalty What, however, is a proper quarantine lawupon any person who should bring into the state what a proper inspection law in regard to cattle any Texas cattle unless they had been wintered at -has not been declared. Under the guise of least one winter north of the southern boundary either a regulation of commerce will not be perof the state of Missouri or Kansas; or should have mitted. Any pretepse or masquerade will be disin his possession any Texas cattle between the regarded, and the true purpose of a statute ascerIst day of November and the 1st day of April fol- tained. Henderson v. New York, 92 U.S. 259. lowing: Another section made any person hav sub, nom. Henderson v. Wickham, 23 L. Ed. 543, ing in his possession such cattle liable for any and Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. damages which might accrue from allowing them 550. But we are not now put to any inquiry of to run at large, and thereby spreading the dis that kind. The good faith and sincerity of the ease among other cattle, known as the Texas Texas officers cannot be doubted, and the statfever," and there was, besides, criminal purish utes under which they acted cannot be justifiably ment. The court did no: pass upon the first sec. complained of. The regulations prescribed are tion. In commenting upon the second some per- I complained of, but are they not reasonably adapt. tinent remarks were made on the facts which ive to the purpose of the statutes,-not in excess justified the statute, and the case of Hannibal & of it? Quarantine regulations cannot be the same St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, for cattle as for persons, and must vary with the was explained. It was said that the case “inter nature of the disease to be defended against. preted the law of Missouri as saying to all trans | As the court of civil appeals said: “The necessiportation companies: “You shall not bring into ties of such cases often require prompt action. If

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