Vermilye v. Western Union Telegraph Co.

Knowlton, C. J. This action was brought by the same plaintiff and tried at about the same time as Vermilye v. Postal Telegraph Cable Co., reported in 205 Mass. 598, and it is almost identical with that case in its facts, and in the findings and rulings of the Superior Court. The only questions raised by the defendant’s exceptions in this case that are not covered by our decision in the other are two: one as to the effect of a certain rule of the defendant, and the other as to the constitutionality of the R L. c. 122, §§ 9,10, in their application to a telegraph company that transmits messages in connection with interstate commerce. The rule relied on by the defendant is as follows: “ Messages to be on message forms. Each message for transmission will be written upon the form provided by the company for that purpose, or will be attached to such form by the sender or by the person presenting the message as the sender’s agent so as to leave the printed heading in full view above the message. ” The plaintiff had no knowledge of this rule when he presented the message. It was in a tariff book which was open to the public in the defendant’s office, but the company did nothing to call the attention of the public to the book, beyond leaving copies of it in its office. The defendant contended that the rule forbade the sender of messages to put anything upon the face of the blank but the message, the date, and the name and address of the [405] person to whom it is to be sent, and that the “ sticker ” and notice attached to the plaintiff’s telegram were in violation of this rule. Witnesses for the defendant were in court ready to testify that the defendant and its agents had always put this construction upon the rule. The judge ruled that the construction put upon it by the defendant and its agents was of no force to bind the plaintiff. This was plainly right. The question for the court was, what was the true meaning of the rule. Not only had the plaintiff done nothing in his dealings with the defendant that would affect him by the defendant’s construction of the rule, but he did not even know of the existence of the rule. The judge found as a fact that the rule did not have the meaning for which the defendant contended. Inspection of the tariff book showed that this was a rule of the receiving department, and that this and other rules under the same and similar headings in the tariff book were intended for the use and guidance of the company’s agents, and not for the public. The language of the rule shows that the judge was right in his construction of it. While it requires that messages shall be written upon the form provided for the purpose, it does not forbid the writing of any other unobjectionable matter upon the same paper, in such a way as not to mislead the agents or cause them inconvenience in the performance of their duties. It was put upon the paper by the plaintiff in the form of a sticker or a notice which it was proper for him to give to the company, orally or in writing, in any reasonable way. The judge found that its presence on the blank had no tendency to confuse the defendant’s operator, or to increase the probability of error or delay in transmitting the message, and that it did not obscure the printed heading above the message. The judge was right in holding that this rule was not a justification for the defendant’s absolute refusal to transmit the message. The only other question is whether the statute under which the plaintiff was permitted to recover is unconstitutional as a regulation of interstate commerce. ^Seemingly this question was not brought to the attention of the judge or the plaintiff’s attorney at the trial, and perhaps it was not thought of then by anybody. But, against the plaintiff’s contention, we treat it as [406] open under the defendant’s exception to the refusal of its fifth request for a ruling, namely, that “ the defendant cannot be held liable under R. L. c. 122, § 9, for refusal to receive and transmit the message in question under the circumstances under which it was presented.” It is settled that telegraph lines extending through different States, to be used in an ordinary way, are instruments of commerce, and that messages passing over them from one State to another in the transaction of business are a part of interstate commerce that is entitled to the protection of the Constitution of the United States. Pensacola Telegraph Co. v. Western Union Telegraph Co. 96 U. S. 1. Telegraph Co. v. Texas, 105 U. S. 460. Western Union Telegraph Co. v. Pendleton, 122 U. S. 347. It is also as well settled by the highest authority that such a statute as that in question, so long as Congress passes no law upon the same subject, is not a regulation of interstate commerce, within the meaning of the constitutional provision, but is a proper police regulation for the enforcement of the rules and policy of the common law, which affects interstate commerce only incidentally. Western Union Telegraph Co. v. James, 162 U. S. 650. Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 634. Missouri Pacific Railway v. Larabee Flour Mills, 211 U. S. 612, 622. Western Union Telegraph Co. v. Wilson, 213 U. S. 52, 55. Western Union Telegraph Co. v. Commercial Milling Co. 218 U. S. 406. The defendant’s counsel has given us no reason and has referred us to no decision that should call for a different conclusion. There is no constitutional objection to the plaintiff’s recovery under the findings of the judge. Exceptions overruled.