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U.S. Supreme Court

Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406 (1910)

Western Union Telegraph Company

v. Commercial Milling Company

No. 15

Argued October 26, 1910

Decided November 28, 1910

218 U.S. 406


Intercourse between the states by telegraph is interstate commerce. Telegraph Co. v: Texas, 105 U. S. 460; Western Un. Tel. Co. v. Pendleton, 122 U. S. 347.

While a state statute which imposes positive duties and regulates the performance of business of a telegraph company is void as a direct regulation of interstate commerce, as decided in Western Un. Tel. Co. v. Pendleton, 122 U. S. 347, a statute which imposes no additional

Page 218 U. S. 407

duty but gives sanction only to an inherent duty and declares, as to a public service, the public policy of the state, does not entail any burden on interstate commerce and is not void under the commerce clause of the Constitution of the United States.

Public service corporations are subject to police regulation, and while the police power is not unlimited, it does include provisions, in pursuance of the public policy of the state, against such a corporation's limiting its liability for its own negligence, and a statute to that effect does not deprive the public service corporation affected thereby of its property without due process of law.

A classification of telegraph companies in a statute prohibiting limitation of liability is reasonable, and does not deny equal protection of the law to telegraph companies because it does not apply to common carriers.

The statute of Michigan of 1893, fixing the liability of telegraph companies for nondelivery of messages at the damages sustained by the sender, is not, as applied to interstate messages, unconstitutional as a burden on, or regulation of, interstate commerce or as depriving telegraph companies of their property without due process of law or denying them the equal protection of the laws.

The common law does not become a part of the law of a its own vigor but is adopted by constitutional provision, statute or decision; it expresses the policy of the state for the time being only, and is subject to be changed by the power that adopted it. It has no efficacy that the statute changing it does not possess.

Whether a prohibition affecting interstate commerce as construed by the highest court of a state rests on the common law liability or on a statute of that state makes no difference in determining its validity under the Constitution of the United States.

151 Mich. 425 affirmed.

This is an action for damages for failure to deliver a telegram given to the telegraph company at Detroit, Michigan, to be delivered at Kansas City, Missouri.

On the 15th of August, 1904, the milling company was offered 10,000 bushels of wheat of a certain kind at $1.01 a bushel for immediate acceptance. The telegram in controversy was sent to accept the offer. It was promptly transmitted by the company to its relay station at Chicago within a minute or two after it was filed at Detroit. What became of it afterwards is not shown; it

Page 218 U. S. 408

was not delivered. On the face of the telegram were the following words: "Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to." One of the conditions referred to was this: "It is agreed . . . that the said company shall not be liable . . . for nondelivery of any unrepeated messages beyond the amount received for the same." Fifty times the amount received for the message was fixed as the damages for nondelivery in case of its repetition, and there was a provision for insurance upon the payment of a premium.

The case was tried to a jury, and the milling company gave evidence of the above facts and of its damages. The telegraph company offered no evidence. The telegraph company asked certain instructions, which to understand, the statute of the state in regard to telegrams must be given. It is entitled

"An Act to Prescribe the Duties of Telegraph Companies Incorporated, Whether within or without This state, Relative to the Transmission of Messages, and to Provide for the Recovery of Damages for Negligence in the Nonperformance of Such Duties."

Laws of 1893, No. 195, p. 312. Section 1 of the act provides as follows:

"SEC. 1. The people of the State of Michigan enact that it shall be the duty of all telegraph companies incorporated either within or without this state, doing business within this state, to receive dispatches from and for other telegraph companies' lines, and from and for any individual, and on payment of the usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph company, to transmit the same with impartiality and in good faith. Such telegraph companies shall be liable for any mistakes, errors, or delays in the transmission

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or delivery, or for the nondelivery of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reason of the mistakes, errors, or delays in the transmission or delivery due to the negligence of said company, or for the nondelivery of any such dispatch due to the negligence of such telegraph company or its agents, to be recovered with the costs of suit by the person or persons sustaining such damage."

As to the statute, the telegraph company requested the court to instruct the jury (1) that it did not prohibit a contract like the one made by the parties; (2) the milling company must recover on the contract or not at all; (3) the message was interstate commerce, and the statute cannot be held to apply to it. If the statute be held to be prohibitory, it is void as an attempted regulation of interstate commerce in violation of the interstate commerce clause of the Constitution of the United States.

The court refused the instructions, and expressed in its charge to the jury a view antagonistic to the propositions of law expressed in them. A verdict was rendered for the milling company in the sum of $960. The telegraph company moved for a new trial, repeating the propositions expressed in the instructions, and added the further ground that the statute, when construed as prohibiting contracts between persons sui juris, is in violation of the Fourteenth Amendment to the Constitution of the United States. Judgment was entered on the verdict, which was affirmed by the supreme court of the state by a divided court.

Page 218 U. S. 413

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