Friedlander v. Postal-Telegraph Cable Co.

WESTENHAVER, District Judge. Plaintiff demurs generally to the second defense of the answer. defense pleads the usual lim [955] itation of liability of a telegraph company for damages due to negligence in transmitting unrepeated messages. In support of the demurrer it is urged that the message, being received in Cleveland to be transmitted to Akron, (Ohio, is an intrastate message and is governed by tlie law of Ohio. [ 1 ] This contention will be true only if there is in force a statute of Ohio declaring such conditions limiting liability null and void. There is no such statute in Ohio. Sections 9182, 9183, and 9185, G. C., are the only sections remotely bearing on this proposition, and they do not so provide. The decisions of the Supreme Court of Ohio, so far as they may be said to declare a rule of decision on the subject, are not binding on the United States courts, for the reason that tlie question involved is one of general jurisprudence, as to which the United States courts ascertain and declare the law for themselves, and not local law as to which the rule of decision of the state is adopted and followed. See Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; B. & O. R. R. v. Baugh, 149 U. S. 369, 13 Sup. Ct. 914, 37 L. Ed. 772; Western Union Telegraph Co. v. Sklar (6 C. C. A.) 126 Fed. 295, 61 C. C. A. 281. [2] Defendant urges that Telegraph Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500, which holds such a stipulation limiting liability for damages due to the negligent transmission of a telegram to be null and void, has been modified by B. & O. R. R. Co. v. Hubbard, 72 Ohio St. 302, 74 N. E. 214, holding valid stipulations limiting liability in a live stock contract, and by Western Union Telegraph Co. v. Wisner, decided by the State Court of Appeals of Eucas county, but not reported, holding valid such a stipulation in a telegram. Whether this is true, we need not inquire, since it is settled law in the United States courts that these stipulations are valid and binding, and, for the reasons above stated, declare the law, which must he followed in this court. Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Western Union Telegraph Co. v. Sklar, supra. The demurrer will be overruled. An exception may be noted.