# Western Union Telegraph Company v. Commercial Milling Company

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United States Supreme Court
218 U.S. 406
Western Union Telegraph Company v. Commercial Milling Company
Argued: October 26, 1901. --- Decided: November 28, 1910
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 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.' [Act 195, Pub. Acts 1893.] 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 despatches from and for other telegraph companies' lines, and from and for any individual, and on payment of the usual charges for individuals for transmitting despatches, 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 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 despatch, 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 14th 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.
Messrs. Rush Taggart, C. D. Joslyn, George H. Fearons, and Henry D. Estabrook for plaintiff in error.
[Argument of Counsel from pages 409-411 intentionally omitted]
Mr. Ralph B. Wilkinson for defendant in error.
[Argument of Counsel from pages 411-413 intentionally omitted]
Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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