APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and cause remanded, with directions to dismiss complaint.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld and Mr. Francis R. Stark, for Appellant.
Mr. L. C. McNabb and Mr. O. B. De Camp, for Appellees.
[41 Ariz. 388] ROSS, C. J.
This is an action by Gertrude Griffin, in which her husband O. H. Griffin joins, brought against the Western Union Telegraph Company to recover damages she alleges she sustained by reason [41 Ariz. 389] of the failure of the defendant to correctly transmit and deliver to her a telegram.
On August 31, 1930, the plaintiff caused the county superintendent of schools of Bates county, at Butler, Missouri, where she lived, to wire the state superintendent of public instruction of Arizona at Phoenix asking if "30 college hours and grade in Arizona History and Physics" would qualify applicant for Arizona certificate for rural school. Upon receipt of this message, one of the operators of the defendant telephoned it to a clerk or employee in the office of the superintendent of public instruction, who dictated over the telephone
to defendant's operator the answer: "Not "Not eligible for certificate under terms of your wire." The telegram received by the county superintendent of schools of Bates county on September 1, 1930, read: "Eligible for certificate under terms of your wire." When this telegram was received by the sendee and shown to plaintiff, the latter, who had been corresponding with the officers of the grammar school at Quartzsite, Yuma county, Arizona, concerning a teaching position, immediately prepared to go to Yuma county. Her husband, who was an employee in a seedhouse, resigned his position. She and her husband, who were engaged in the dairy business, sold it and, relying upon the telegram loaded themselves and three children into their automobile and left for Yuma county; and by driving five days and two nights, almost continuously, arrived at their destination on September 13th, in time for the plaintiff to take the examination before the county superintendent of schools for a teacher's certificate. She failed of the necessary grades to entitle her to a certificate to teach in the schools of Arizona. She seeks to recover her expenses and damages for the inconvenience she was caused by defendant's error.
[41 Ariz. 390] The defendant in its answer, besides a general denial, sets forth that the message was an interstate message and delivered to and accepted by it subject to its schedules of tariffs, rates and classifications, and the conditions and stipulations as set forth in its standard message contract filed by the defendant with, and approved by, the Interstate Commerce Commission July 13, 1921. Defendant alleges that a condition of said contract is:
"6. The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission."
That plaintiff did not present to defendant in writing, or at all, within sixty days after said message was filed with it for transmission, any claim or demand for damages. That the message was unrepeated and, according to a condition of said contract, the company is not liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any message paid for at an unrepeated rate, beyond the sum of $500.
The court rejected these special defenses and submitted the case to the jury on the question of damages, and the jury found the issue in favor of plaintiff and gave her a verdict for $1,000, upon which a judgment was entered.
The defendant has appealed and assigned many errors, but we have come to the conclusion that the case should have been disposed of on defendant's special defenses, and will confine ourselves to the consideration of the question or questions these defenses raise. These questions were properly raised by motion for a directed verdict and by requested instructions.
By the amendment of June 18, 1910 (36 Stat. 539), U.S.C.A., title 49, §§ 1-15, the Interstate Commerce [41 Ariz. 391] Act was extended to cover common carriers engaged in the transmission of intelligence by wire or wireless in interstate and foreign commerce. Before this, the regulation of such agencies was generally recognized as a state right or function, and their liability for tort or breach of contractual duty was governed by statute and by the common law, or both. The regulation of interstate commerce is by the Federal Constitution conferred upon the Congress. Article 1, § 8, subd. 3. Until the Congress assumed the exercise of this power by the creation of the Interstate Commerce Commission and invested it with the supervision and regulation of common carriers of intelligence, such as telegraph and telephone and cable companies, there was no objection to the different states occupying such field. Congress having moved into the field, however, has automatically ousted the states. It is now well settled by the federal courts and most of the state courts that the rights and liabilities and duties arising out of interstate messages depend upon the act of Congress. The latest opinion of the Supreme Court upon the effect ...