[218 U.S. 406, 407] This is an action for damages for failure to deliver a telegram given to the telegraph company at Detroit, Michigan, to be delivered at Kansas City, Missouri.
On the 15th of August, 1904, the milling company was offered 10,000 bushels of wheat, of a certain kind, at $1.01 a bushel, for immediate acceptance. The telegram in controversy was sent to accept the offer. It was promptly transmitted by the company to its relay station at Chicago within a minute or two after it was filed at Detroit. What became of it afterwards is not shown; it [218 U.S. 406, 408] was not delivered. On the face of the telegram were the following words: 'Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.' One of the conditions referred to was this: 'It is agreed . . . that the said company shall not be liable . . . for nondelivery of any unrepeated messages beyond the amount received for the same.' Fifty times the amount received for the message was fixed as the damages for nondelivery in case of its repetition, and there was a provision for insurance upon the payment of a premium.
The case was tried to a jury, and the milling company gave evidence of the above facts and of its damages. The telegraph company offered no evidence. The telegraph company asked certain instructions, which to understand, the statute of the state in regard to telegrams must be given. It is entitled, 'An Act to Prescribe the Duties of Telegraph Companies Incorporated, Whether within or without This State, Relative to the Transmission of Messages, and to Provide for the Recovery of Damages for Negligence in the Nonperformance of Such Duties.' [Act 195, Pub. Acts 1893 .] Section 1 of the act provides as follows:
As to the statute, the telegraph company requested the court to instruct the jury (1) that it did not prohibit a contract like the one made by the parties; (2) the milling company must recover on the contract or not at all; (3) the message was interstate commerce and the statute cannot be held to apply to it. If the statute be held to be prohibitory, it is void as an attempted regulation of interstate commerce, in violation of the interstate commerce clause of the Constitution of the United States.
The court refused the instructions, and expressed in its charge to the jury a view antagonistic to the propositions of law expressed in them. A verdict was rendered for the milling company in the sum of $960. The telegraph company moved for a new trial, repeating the propositions expressed in the instructions, and added the further ground that the statute, when construed as prohibiting contracts between persons sui juris, is in violation of the 14th Amendment to the Constitution of the United States. Judgment was entered on the verdict, which was affirmed by the supreme court of the state by a divided court.
Messrs. Rush Taggart, C. D. Joslyn, George H. Fearons, and Henry D. Estabrook for plaintiff in error.
[218 U.S. 406, 411] Mr. Ralph B. Wilkinson for defendant in error.
Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court:
Intercourse between the states by the telegraph is interstate commerce. Western U. Teleg. Co. v. Texas, 105 U.S. 460, 464 , 26 S. L. ed. 1067, 1068; Western U. Teleg. Co. v. Pendleton, 122 U.S. 347, 356 , 30 S. L. ed. 1187, 1188, 1 Inters. Com. Rep. 306, 7 Sup. Ct. Rep. 1126. So considering, one division of the supreme court of Michigan was of the opinion that the statute of the state in regard to telegraph messages, if not limited to those which were delivered within the state, would be unconstitutional. In arriving at that conclusion it was considered whether the common law of the state prohibited the stipulation against liability for negligence, and it was asked, if it did not, 'can a statute of a state deny to one engaged in interstate commerce the right which he theretofore possessed of making a contract limiting his lia- [218 U.S. 406, 414] bility?' The first question was answered in the negative, on the authority of the Western U. Teleg. Co. v. Carew, 15 Mich. 525, and subsequent cases. The second question was also answered in the negative, as we have seen. It was, in effect, said that if the first question could be answered in the affirmative, the case would be determined by the local law, and there would be no power of revision in this court, citing Delmas v. Merchants' Mut. Ins. Co. 14 Wall. 661, 20 L. ed. 757, and Pennsylvania R. Co. v. Hughes, 191 U.S. 477 , 48 L. ed. 268, 24 Sup. Ct. Rep. 132. This presents the seeming paradox that a prohibition against a limitation of liability, if prescribed by the common law, would be valid, and that a like prohibition prescribed by a statute would not be. It is not clear whether it is meant to be said that in the first instance there would be, and in the second instance there would not be, a proper limitation of the liberty of contract and a valid interference with interstate commerce.
The other division of the court, on the other hand, expressed the view that 'the legislature intended its action to be coextensive with its authority to act, and that the statute should be given the broadest possible application,' and held to cover state and interstate messages, and 'to forbid a limitation of liability' for negligence, and 'to make void the stipulation contained in the contract.' The power of the legislature to pass it was asserted, and that it did not burden interstate commerce. 'The contract,' it was said, 'was made in the state, is single, involves in its performance service of defendant within and without this state for a single charge.' The service was not performed, and for the breach of the common-law and contract duty the milling company has brought suit, it was said, and that the telegraph company seeks to avoid liability by the stipulation on the back of the message. To this defense it was answered:
Western U. Teleg. Co. v. Pendleton leaves nothing to be said upon the principles relating to interstate telegraphic messages and the limitations upon the states of power to regulate them. A statute of Indiana was adjudged invalid which prescribed that despatches should be transmitted in the order of their delivery, whether intended for delivery within or without the state, 'under penalty, in case of failure to transmit, or if postponed out of such order, of $100, to be recovered by the person whose despatch is neglected or postponed.' The statute was construed by the supreme court of the state to apply to despatches not delivered in the state, even against the practice of the companies, authorized by the laws of another state. The message was delivered to the telegraph company in Indiana, addressed to the care of a person in Ottumwa, Iowa, who lived over a mile from the telegraph station, and not within the delivery district. These facts were set up in the answer, and that, in accordance with the custom and usage of the office, and in order to facilitate the delivery of the message, a copy of the telegram was [218 U.S. 406, 416] promptly placed in the postoffice, properly addressed, and delivered the following morning. And it was averred that this was in accordance with the laws of Iowa. A demurrer was sustained to the answer, and judgment entered for the plaintiff for the sum of $100. It was affirmed by the supreme court; it was reversed by this court on the ground that the statute was a regulation of interstate commerce. Of the correctness of that conclusion there cannot be any controversy, but there is a manifest difference between the statute of Indiana and the statute of Michigan and their purposes and effects. The former imposed affirmative duties, and regulated the performance of the business of the telegraph company. It besides ignored the requirements or regulations of another state, made its laws paramount to the laws of another state, gave an action for damages against the permission of such laws for acts done within its jurisdiction. Such a statute was plainly a regulation of interstate commerce, and exhibited in a conspicuous degree the evils of such interference by a state, and the necessity of one uniform plan of regulation. The statute of Michigan has no such objectionable qualities. It imposes no additional duty. It gives sanction only to an inherent duty. It declares that in the performance of a service public in its nature, that it is a policy of the state that there shall be no contract against negligence. The prohibition of the statute, therefore, entails no burden. It permits no release from that duty in the public service which men in their intercourse must observe,- the duty of observing the degree of care and vigilance which the circumstances justly demand, to avoid injury to another.
We have seen that one division of the supreme court of the state was of the view that if the prohibition rested on the common law, its validity could not be questioned. We cannot concede such effect to the common law and deny it to a statute. Both are rules of conduct proceed- [218 U.S. 406, 417] ing from the supreme power of the state. That one is unwritten and the other written can make no difference in their validity or effect. The common law did not become a part of the laws of the states of its own vigor. It has been adopted by constituional provision, by statute or decision, and, we may say in passing, is not the same in all particulars in all the states. But, however adopted, it expresses the policy of the state for the time being only, and is subject to change by the power that adopted it. How, then, can it have an efficacy that the statute changing it does not possess?
It is to the laws, whether part of the common law or found in the statutes of the state, that we look for the validity and extent of a contract between persons. They constitute its obligation. How far this principle is limited by the commerce clause of the Constitution of the United States may be illustrated by several cases cognate to the one at bar.
In Chicago, M. & St. P. R. Co. v. Solan, 169 U.S. 133 , 42 L. ed. 688, 18 Sup. Ct. Rep. 289, a statute was considered which prohibited any railway company from limiting its liability as a common carrier. Solan sued the company to recover $10,000 damages received by him in Iowa from the derailing, by the company's negligence, of a car in which he was traveling under a written contract by which the company agreed to carry him, with cattle, from Rock Valley to Chicago. It was stipulated in the contract that the company should, in no event, be liable to the owner or person in charge of such stock for any injury to his person in any amount exceeding $500. The company alleged that the stipulation was part of the consideration for the transportation, that it related exclusively to interstate commerce, that it was valid at common law, and that the statute of Iowa was void and unconstitutional, 'as being an attempt to regulate and limit contracts relating to interstate commerce.' The contentions were rejected. The court said: [218 U.S. 406, 418] 'Railroad corporations, like all other corporations and persons doing business within the territorial jurisdiction of a state, are subject to its law. . . . The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property otherwise endangered by their use, are strictly within the scope of the local law. They are not in themselves regulations of interstate commerce, although they control, in some degree, the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the state to regulate the relative rights and duties of all persons and corporations within its limits.'
It was further said:
Pennsylvania R. Co. v. Hughes, 191 U.S. 477 , 48 L. ed. 268, 24 Sup. Ct. Rep. 132, may be cited as pertinent. It determined the validity of the common law of Pennsylvania, which prohibited the common carrier from limiting his liability for his own negligence, though the property was shipped from New York to a town in Pennsylvania, under a bill of lading which contained a clause limiting the carrier's liability to a stip- [218 U.S. 406, 419] ulated value in consideration of the rate paid, the shipper having been offered a bill of lading without such limitation on payment of a higher rate. The court quoted at length from the Solan Case, and concluded as follows:
There is a difference between that case and this,-indeed some contrast. In that case a contract was made in New York which limited the liability of the carrier, the limitation being in accordance with the laws of that state; it was disregarded in Pennsylvania, where the act of negligence occurred, and the law of the latter enforced. In this case the contract limiting liability was made in Michigan, the negligent act occurred in another state, and yet the limitation, it is insisted, is void. In other words, in that case the law of the state was disregarded; in this case it is sought to be enforced. These, however, are but incidental contrasts, in no way affecting the basic principle of the cases, which was that the laws passed upon were exercises of the police power of the states in aid of interstate commerce, and, although incidentally affecting it, did not burden it.
Western U. Teleg. Co. v. James, 162 U.S. 650 , 40 L. ed. 1105, 16 Sup. Ct. Rep. 934, is a strong example of the same distinctions. A statute of Georgia which required telegraph companies having wires wholly or partly within the state to receive despatches, transmit and deliver them with due diligence, under the penalty of $100, was sustained as a valid exercise of the power of the state in relation to messages by telegraph [218 U.S. 406, 420] from points outside of and directed to some point within the state. It will be observed that this case in some particulars exhibits a contrast to Western U. Teleg. Co. v. Pendleton, 122 U.S. 347 , 30 L. ed. 1187, 1 Inters. Com. Rep. 306, 7 Sup. Ct. Rep. 1126, and yet they are entirely reconcilable, having a common principle. In the latter case the law passed on clearly transcended the power of the state, because it directly regulated interstate commerce, as we have already shown. In the James Case the power of the state was exercised in aid of commerce. In the latter case prior cases were reviewed, and the principle determining the validity of the respective statutes was declared to be whether they could be 'fully carried out and obeyed without in any manner affecting the conduct of the company with regard to the performance of its duties in other states.' It was said that a statute of that kind, as it would not 'unfavorably affect or embarrass' the telegraph company in the course of its employment, should be held valid 'until Congress speaks upon the subject.' And it was observed that 'it is the duty of a telegraph company which receives a message for transmission, directed to an individual at one of its stations, to deliver that message to the person to whom it is addressed with reasonable diligence and in good faith. That is a part of its contract, implied by taking the message and receiving payment therefor.' And there can be liability to the sender of the message as well as to him who is to receive it. The telegraph company in the case at bar surely owed the obligation to the milling company to not only transmit the message, but to deliver it. For the failure of the latter it sought to limit its responsibility,-to make the measure of its default not the full and natural consequence of the breach of its obligation, but the mere price of the service, relieving itself, to some extent, even from the performance of its duty; a duty, we may say, if performed or omitted, may have consequence beyond the damage in the particular instance. This the statute of the state, expressing the policy of the state, [218 U.S. 406, 421] declares shall not be. For the reasons stated we think that this may be done, and that it is not an illegal interference with interstate commerce.
Another contention is made. It is urged that the statute as construed violates the 14th Amendment of the Constitution of the United States, in that it abridges the privileges and immunities between citizens of the United States, and deprives the telegraph company and the persons with whom it does business of their liberty and property without due process of law. The basis of this contention is the liberty of the telegraph company to make contracts. It is rather late in the day to make that contention. The regulation of public-service corporations is too well established, both as to power and the extent of the power, to call for any discussion. It is true such power is not unlimited, nor is the police power of the state, but the cases we have cited demonstrate that the statute of Michigan is not in excess of such powers.
Lastly it is said that the statute deprives the telegraph company and the persons with whom it does business of the equal protection of the laws. This is sought to be sustained on the ground that express companies and other common carriers may by contract limit their liability. The argument to sustain the contention is in effect that which we have considered. If an unjust discrimination is intended to be asserted, Orient Ins. Co. v. Daggs, 172 U.S. 557 , 43 L. ed. 552, 19 Sup. Ct. Rep. 281, is an answer.
Mr. Justice Holmes dissents.