Opinion
45977.
ARGUED MARCH 2, 1971.
DECIDED MAY 20, 1971. REHEARING DENIED JULY 8, 1971.
Action for damages. DeKalb State Court. Before Judge Smith.
George H. Carley, for appellant.
Heyman Sizemore, Robert E. Hicks, Louis C. Parker, III, for appellee.
The defendant's liability for late delivery of an interstate telegram was limited to $500 under a tariff which it filed pursuant to Section 203 (a) of the Federal Communications Act of 1934 as amended.
ARGUED MARCH 2, 1971 — DECIDED MAY 20, 1971 — REHEARING DENIED JULY 8, 1971 — CERT. APPLIED FOR.
The Housing Authority of the City of Decatur, Georgia, appellant herein, filed its complaint in the Civil and Criminal Court of DeKalb County (now State Court of DeKalb County) against the Western Union Telegraph Company, appellee herein, seeking to recover against appellee for damages sustained as a result of the late delivery of a telegram. The complaint was couched in two counts, both of which alleged that on October 15, 1968, appellant received bids for the sale of preliminary loan notes pursuant to prior notice of sale of such notes requiring all bidders to submit their complete bid — including designation of the principal of the loan, interest rate, premium and other relevant information — so that such bid would reach the office of the appellant no later than 1 p. m. Eastern Daylight Time on October 15, 1968. The notice further stated that the lowest and best bid would be accepted from all bids submitted and received by the stated time of 1 p. m. on said date. The complaint further alleges that, of the bids received by 1 p. m. Eastern Daylight Time on October 15, 1968, the lowest and best bid received was a joint bid from First National Bank of Boston and John Nuveen Company proposing an interest rate of 3.33% per annum plus a premium of $65, which bid was accepted by appellant in accordance with the above described notice of sale.
Appellant further alleges that subsequent to the receipt and acceptance of the bid of First National Bank of Boston and John Nuveen Company, appellant received at 1:17 p. m. on October 15, 1968, a telegram transmitted by appellee containing the bid of Morgan Guaranty Trust Company of New York and Salomon Brothers and Hutzler by the Morgan Guaranty Trust Company proposing an interest rate of 3.22% per annum and a premium of $83. A copy of the telegram containing said late bid was attached to and made a part of the complaint and the telegram showed that it was submitted to appellee's New York office at 11:14 a. m. on October 15, 1968. The telegram plainly stated on its face that it must be delivered to appellant before 1 p. m. Eastern Daylight Time on October 15, 1968. Both counts of appellant's complaint allege that had this telegram been received timely, the bid contained there would have been accepted by the appellant as the lowest and best bid.
Count 1 of appellant's complaint alleges that this bid, which, if timely delivered would have been accepted as the lowest and best bid, was received subsequent to 1 p. m. Eastern Daylight Time on October 15, 1968, as a result of the negligence of the appellee and that as a result of this negligence, appellant has sustained damages in the amount of the extra interest it became obligated to pay by virtue of the acceptance of the higher bid which was the lowest bid that was timely received. Appellant further alleged that it was required to pay the sum of $1,775.31 additional interest and that it did not receive the sum of $18 representing the additional premium that would have been paid to appellant had the lowest and best bid been received timely.
Count 2 of appellant's complaint alleges that when appellee's New York office accepted at 11:14 a. m. the telegram clearly stating thereon the necessity of its delivery prior to 1 p. m. Eastern Daylight Time, a contractual arrangement was entered into between the parties for the benefit of the parties and for appellant, the addressee of said telegram. Count 2 of the appellant's complaint further alleges that the appellee utterly failed to fulfill its obligation to deliver the telegram in accordance with its agreement, which failure constituted a breach by appellee of its contractual arrangement with the sender of the telegram for the benefit of appellant and that as a result of this breach of contract, appellant sustained total damages in the amount of the extra interest it became obligated to pay plus the sum of $18 representing the additional premium appellant would have received had the telegram been timely transmitted.
Appellee in its answer admitted the basic factual occurrences alleged in appellant's complaint and described above, but denied that it was negligent or that it had breached its contract or that it was liable to appellant in any sum whatsoever. Appellee further alleged in its answer that the telegram was delivered to and accepted by appellee subject to the terms and condition that appellee would not be liable for mistakes or delays in the transmission or delivery or non-delivery of the message beyond the total sum of $500. Appellee, in its answer, relied upon the fact that the telegram was an interstate message and that the conditions of the limitation of liability alleged in its defense were set forth in the tariff filed by the appellee with the Federal Communications Commission and that said tariff was in effect on October 15, 1968.
Appellee's motion for partial summary judgment, the granting of which is the subject of this appeal, is based upon Western Union Tariff FCC No. 176 filed with the Federal Communications Commission pursuant to Section 203 (a) of the Federal Communications Act of 1934 as amended, ( 47 USCA § 203 (a)), "limiting the liability of the Western Union Telegraph Company to the sum of $500 for delay, mistake or non-delivery of a message or underpayment of a money order whether by reason of negligence on the part of the company or otherwise, for a telegram sent at the unrepeated message rate." The trial court, by its order entered on November 6, 1970, granted appellee's motion for partial summary judgment and ordered that appellee's ultimate liability be limited to $500 plus the cost of the telegram. It is from this order that the appeal is taken.
The appellant argues that the tariff filed by the appellee is not just and reasonable as applied to the facts of this case. The appellant's argument is answered in the negative in Gardner v. Western Union Telegraph Co., 231 F 405, 412, which states: "We are therefore of the opinion that Congress having taken possession of the field of interstate commerce by telegraph, the provision of the Constitution of Oklahoma relied upon has become inoperative for the purpose of striking down the regulation in question. Whether the regulation is a reasonable one or not is in our judgment a question for the Interstate Commerce Commission to determine. Mitchell Coal Coke Co. v. Pa. R. Co., 230 U.S. 247 ( 33 SC 916, 57 LE 1472); Chicago Alton R. Co. v. Kirby, 225 U.S. 155 ( 32 SC 648, 56 LE 1033, AC 1914A, 501); Texas Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 ( 27 SC 350, 51 LE 553, 9 AC 1075)."
The appellee's liability is controlled by the tariff which it filed pursuant to Section 203 (a) of the Federal Communications Act of 1934. The granting of the partial summary judgment was not error.
Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Deen and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.
Plaintiff sued defendant for failure to properly transmit a telegram from New York City to Decatur, Georgia, and, as a result of such failure, it alleged that damages were suffered.
Defendant moved for partial summary judgment, contending that the telegram in question was accepted by defendant subject to the condition that defendant should not be liable for mistakes or delays in the transmission or delivery or non-delivery of any message received for transmission at the regular rate beyond the sum of $500; and contending that said condition was on file with the Federal Communications Commission as a part of defendant's tariff prior to and in effect on October 15, 1968.
The trial judge granted defendant's motion for partial summary judgment, limiting its liability to not more than $500.
Defendant, as movant for summary judgment, had the burden "to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. . . The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. . . The Act cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact, and it is indeed a great responsibility to say that `in truth there is nothing to be tried.'" Holland v. Sanfax Corp., 106 Ga. App. 1,4 (126 S.E.2d 442). One of the matters as to which defendant was required to carry the burden described in the foregoing authority, and in the way and manner described therein, was that it had filed with the Federal Communications Commission a tariff limiting its liability to $500. It introduced the affidavit of its area vice president, E. O. Harbour, who, among other things, testified: "That the attached certified copy of the Western Union Tariff on file with the Federal Communications Commission was in effect on October 15, 1968, the date of the message involved in the above-styled case." But, the purported tariff alleged to be of file with the Federal Communications Commission, which appears in the record at page 27, contains the following: "(b) Messages will be accepted for transmission under the following conditions (which appear on the Telegraph Company's sending message form), subject to the conditions set forth under paragraph (c) of this rule." (Emphasis supplied.) But, alas and alack! Paragraph (c) is not included in the papers and documents introduced as evidence, and we are left to wonder just how little or how much said omitted paragraph (c) affected the purported tariff. We have no way of knowing how to construe the tariff because all of it was not introduced, and that which was introduced was therefore unintelligible.
This court will not take judicial notice of tariffs, records and documents filed with Federal regulatory bodies, nor of State regulatory bodies. See: Hartwell R. Co. v. Kidd, 10 Ga. App. 771 ( 74 S.E. 310) (4); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 (5) ( 76 S.E.2d 536); Hubbard v. Ruff, 97 Ga. App. 251, 256 ( 103 S.E.2d 134); Davis v. General Gas Corp., 106 Ga. App. 317 (1a) ( 126 S.E.2d 820); Sims v. Southern Bell Tel. c. Co., 111 Ga. App. 363, 364 ( 141 S.E.2d 788); Peoples, Inc. v. DeVane, 114 Ga. App. 597 ( 152 S.E.2d 649). Therefore, it is quite plain that the defendant did not carry the burden imposed by law upon it as movant for summary judgment in this case.
One additional matter worthy of note is that paragraph (b) of the tariff that was introduced states that the conditions "appear on the Telegraph Company's sending message form," whereas in the case sub judice, there is nothing to indicate that any condition whatever appeared upon the Telegraph Company's sending message form.
I therefore dissent and would reverse the trial court.
I am authorized to state that Judge Pannell concurs in this dissent.