Opinion
8 Div. 483.
November 16, 1922.
Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.
Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, and Eyster Eyster, of Albany, for appellant.
The transmission of a message through two states is interstate commerce as a matter of fact. 254 U.S. 17, 41 Sup. Ct. 11, 65 L.Ed. 104; 205 Ala. 115, 87 So. 858; 198 Ala. 682, 73 So. 973; 200 Ala. 65, 75 So. 393; 105 U.S. 460, 26 L.Ed. 1067; 251 U.S. 27, 40 Sup. Ct. 69, 64 L.Ed. 118; 251 U.S. 315, 40 Sup. Ct. 167, 64 L.Ed. 281; 220 U.S. 364, 31 Sup. Ct. 399, 55 L.Ed. 498. The rates, classifications, and conditions limiting liability, on file with the Interstate Commerce Commission, were binding on plaintiff, regardless of his knowledge of or assent thereto. 158 U.S. 98, 15 Sup. Ct. 802, 39 L.Ed. 910; 202 U.S. 242, 26 Sup. Ct. 628, 50 L.Ed. 1011; 237 U.S. 94, 35 Sup. Ct. 494, 59 L.Ed. 853, L.R.A. 1915E, 665; 233 U.S. 97, 34 Sup. Ct. 526, 58 L.Ed. 868, L.R.A. 1915B, 450, Ann. Cas. 1915D, 593; 255 U.S. 298, 41 Sup. Ct. 261, 65 L.Ed. 653; 231 Fed. 405, 145 C.C.A. 399.
S. A. Lynne, of Decatur, for appellee.
Brief of counsel did not reach Reporter.
This case was tried before the pronouncement of the Supreme Court in Western Union Telegraph Co. v. Esteve Bros. Co. (decided June 21, 1921) 256 U.S. 566, 41 Sup. Ct. 584, 65 L.Ed. 1094. This deliverance, along with that of Gardner v. W. U. Tel. Co., 231 Fed. 405, 145 C.C.A. 399, to review and revise which certiorari was denied by the Supreme Court, 243 U.S. 644, 645, 37 Sup. Ct. 405, 61 L.Ed. 944, requires the conclusion that the court erred in giving effect to view expressed by the demurrers to pleas 3, 4, and 5. It is unnecessary to repeat the considerations stated in those decisions, inducing the conclusion that such matters as these pleas assert have the force and effect of law, and whether known to the parties or not, and though otherwise not incorporated in the contract for telegraphic service, impose their rule upon the rights of the parties, and restrict them accordingly; this to the end that the uniformity, the nondiscrimination the acts of Congress contemplate may be effectually assured.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.