113 F.2d 539 (1st Cir. 1940), 3555, O'Brien v. W. U. Tel. Co.

Docket Nº3555.
Citation113 F.2d 539
Party NameO'BRIEN v. WESTERN UNION TELEGRAPH CO.
Case DateJuly 18, 1940
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 539

113 F.2d 539 (1st Cir. 1940)

O'BRIEN

v.

WESTERN UNION TELEGRAPH CO.

No. 3555.

United States Court of Appeals, First Circuit.

July 18, 1940

Page 540

Maurice Caro, of Boston, Mass. (J. Edward Keefe, Jr., of Boston, Mass., on the brief), for appellant.

Arthur P. Hardy and Hardy, Hall & Iddings, all of Boston, Mass. (Francis R. Stark, of New York City, on the brief), for appellee.

Before MAGRUDER, and MAHONEY, Circuit Judges, and SWEENEY, District judge.

MAGRUDER, Circuit Judge.

This is an action of tort for libel, begun in the Superior Court for Suffolk County, Massachusetts, and later removed to the federal court. The jury returned a verdict for defendant, and the plaintiff appeals from the judgment entered thereon.

From the uncontradicted evidence the following facts appear: In 1936 the plaintiff Thomas C. O'Brien 'at the advice of Father Coughlin' became a candidate for the offices of United States Senator from Massachusetts and Vice-president of the United States, on the nomination of the Union Party. On the late afternoon of September 30, 1936, an unidentified person brought into a branch office of the Western Union Telegraph Company in Boston a message containing 1,461 words, purporting to be signed by one Robert Robinson, to be transmitted to Father Charles E. Coughlin, Royal Oak, Michigan. In regular course the message was sent to the main office in Boston. Within an hour after its receipt at the branch office an operator at the main office had completed the transmission of the message by teletypewriter to Detroit, whence it was relayed to Royal Oak. The only publication relied on is the delivery of the message to Father Coughlin personally, by an employee of the telegraph company.

On its face, the message contained obviously defamatory statements concerning Mr. O'Brien. The purported interest of the sender of the message was that of a prominent and lifelong member of the Democratic Party he feared the adverse effect which the candidacy of Mr. O'Brien might have upon the success of the Democratic ticket. This is the concluding paragraph of the message:

I SEND YOU THIS STATEMENT WITH A FREE AND OPEN MIND, DELAYING SAME HOPING THAT YOU YOURSELF WOULD DISCOVER THESE FACTS. HOWEVER YOUR FAILURE TO DO SO HAS MOVED ME TO TAKE THE ACTION I AM NOW TAKING, TO NOTIFY YOU THAT AT MY OWN EXPENSE I SHALL FROM THIS DAY THROUGH THE MEDIUM OF THE PUBLIC PLATFORM AND RADIO ENLIGHTEN THE PEOPLE NOT ONLY OF THIS STATE, BUT THROUGHOUT THE NATION THE TRUE CHARACTER AND BACKGROUND OF YOUR CANDIDATE FOR UNITED STATES SENATE AND VICE-PRESIDENT, THOMAS C. O'BRIEN.'

Defendant pleaded inter alia that it was privileged to make the publication, and relied principally on this defense. At the close of the evidence, the trial judge denied motions for a directed verdict filed by both parties, and left the case to the jury under instructions on points of law. On this appeal the only question presented is whether the trial judge erred in refusing to rule as a matter of law that the telegraph company was not privileged in transmitting and

Page 541

delivering the message to Father Coughlin.

In determining the privilege of the defendant to transmit the libelous message in question, we are not bound by the common law or statutes either of Massachusetts, where the message originated, or of Michigan, where it was delivered. The telegram was an interstate message. It was transmitted by common carrier engaged in interstate communication by wire. The telegraph company is subject to the Communications Act of 1934, 48 Stat. 1064, 47 U.S.C.A. §§ 35, 151 et seq., and to regulations thereunder by the Federal Communications Commission. Under Sec.202(a) of the Act, 1 defendant is forbidden to make any unreasonable discrimination in charges, practices, facilities or services, or to subject any person to unreasonable prejudice or disadvantage. Civil and criminal penalties are provided for violation of these provisions. Secs. 202(c), 501-505. Secs. 206, 207 cover liability for damages where private injury results from any unlawful act or omission. Congress having occupied the field by enacting a fairly comprehensive scheme of regulation, it seems clear that questions relating to the duties, privileges and liabilities of telegraph companies in the transmission of interstate messages must be governed by uniform federal rules. This conclusion is fortified by decisions under the Interstate Commerce Act, 49 U.S.C.A. 1 et seq., which was applicable to telegraph companies prior to the passage of the Communications Act of 1934. See Western Union Telegraph Co., v. Call Publishing Co. 1901, 181 U.S. 92, 21 S.Ct. 561, 45 L.Ed. 765; Postal Telegraph-cable Co. v. Warren-Godwin Lumber Co., 1919, 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; Western Union Telegraph Co. v. Boegli, 1920, 251 U.S. 315, 40 S.Ct. 167, 64 L.Ed. 281; Western Union Telegraph Co. v. Speight, 1920, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104; Hall v. Western Union Telegraph Co., 1918, 108 S.C. 502, 94 S.E. 870; Poor v. Western Union Telegraph Co., 1917, 196 Mo.App. 557, 196 S.W. 28.

No provision of law expressly defines the duty of telegraph companies to accept and transmit defamatory messages. Such duty as does exist is implicit in the general language of Sec. 202(a) of the Communications Act. 2 The extent of this duty will necessarily be marked out and made explicit in successive decisions of the federal courts interpreting and applying the language of the Act. Penal liability of a telegraph company, and civil liability or immunity to the sender, for failure to transmit a message promptly will necessarily be determined by...

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