Vermilye v. Postal Telegraph Cable Co. of Massachusetts, 205 Mass. 598 (Mass. 1910)

Knowlton, C. J.

The plaintiff, having occasion to use the telegraph frequently in, his business, and desiring to give a notice that would entitle him to recover special damages suf

fered from a neglect of the defendant to transmit promptly and correctly a message which he took to its office to be sent, put upon the blank on which the message was written a gum “ sticker,” on which a notice was printed as follows: “Notice is hereby given that this is a business message, and that failure to deliver it promptly and correctly is likely to cause the sender financial loss. Further particulars will be furnished if desired on application to the sender at 116 Bedford St., Boston.” This he did for his protection under the rule stated in Wheelock v. Postal Telegraph Cable Co. 197 Mass. 119, and Squire v. Western Union Telegraph Co. 98 Mass. 232, 236, 237, that the damages to be recovered for a breach of contract in transmitting a telegraphic message are such as reasonably might have been expected to be within the contemplation of the parties, by reason of the contents of the message or the circumstances attending the transaction when the contract was made. At different times other messages, accompanied by similar notices in different forms, were offered by the plaintiff to the defendant for transmission and refused, and one or more of this kind was sent. Seemingly, both parties were trying to do that which was thought best for the protection of their respective rights and interests in reference to the liabilities growing out of this kind of contract. The findings of the judge who tried the case without a-jury have relieved the controversy of some of the questions which otherwise might arise. He found that there was an absolute refusal of the defendant to receive and transmit the message while it was accompanied by such a notice. Nothing was said by either party about having the message repeated or insured, as it might have been under the regulations of the company upon payment of an additional price. He found that this refusal was without reference to the particular form in which the notice was presented, and that the form chosen by the plaintiff for the notice on this message had no .tendency to confuse the operator, and did not increase the probability of error or delay in transmitting the message. These findings were well supported by the evidence,

The first count was at common law for a refusal to receive and forward the message, and the second was under the R. L. c. 122, §§ 9, 11, for the same cause of action. The defendant was engaged in a quasi public employment, to be carried on for the accommo

dation of the community, with a view to the general benefit. It had no right to refuse to receive a proper message, for whose transmission payment was tendered. R. L. c. 122, § 9. Ellis v. American Telegraph Co. 13 Allen, 226, 231. The only question raised is whether the giving of the notice by the plaintiff relieved the defendant of its obligation to transmit the message. It was certainly the right of the plaintiff to inform the defendant as to the nature of the message, and its importance from a financial point of view, in order that the nature and particulars of its undertaking might be understood by the defendant, and the obligation that it incurred in reference to damages for a breach of the contract. Wheelock v. Postal Telegraph Cable Co., ubi supra. Such a notice would furnish no justification for a refusal to send a message, whether it might or might not be a sufficient reason for charging something more than the lowest rate established for the transmission of messages. See Bernard v. Adams Express Co., ante, 254. It was intended to show that the damage for a failure properly to send arid deliver the message would probably be substantial, and, under the statute and the rules and regulations of the company, to create a liability that might reach the sum of S100. Such a liability might exist without a special notice if the language of the message sufficiently indicated the importance of a prompt delivery of it, and the loss that would result from a failure to deliver it promptly. Whatever negotiations or proposals or limitations on the part of the defendant might have been warranted by the giving of the notice, the absolute refusal to receive and send the message was unreasonable, and justified a finding for the plaintiff under the first or second count, either under the statute or at common law.

The other count was under the R. L. c. 122, §§ 9, 10, to recover the forfeiture provided by § 10. The question under this count is whether the refusal of the defendant was wilful, within the meaning of the section. It is conceded that it was intentional, and the judge found that it was unreasonable. He ruled that a refusal that was both intentional and unreasonable was wilful, within the meaning of the statute. This ruling was right.

The defendant’s argument upon this branch of the case is chiefly, in the nature of an assumption that the conduct of the

defendant was reasonable, in reference to the different rates charged, depending upon whether the message was sent in the usual way or was repeated or insured, and in reference to the attempt to impose upon the defendant by the notice a liability that otherwise would not exist. This argument is answered by the findings of the judge that the refusal of the defendant was absolute, and without reference to the rates that might be charged in view of the different degrees of responsibility that might be assumed for a failure to transmit the message correctly and promptly.

We have already said that these findings were well warranted by the evidence.