Mentzer v. New England Tel. & Tel. Co.

• Citation: 276 Mass. 478,177 N.E. 549
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 11 September 1931
• Parties: MENTZER v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. MENTZER et al. v. SAME.

276 Mass. 478

177 N.E. 549

MENTZER

v.NEW ENGLAND TELEPHONE & TELEGRAPH CO.

MENTZER et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Sept. 11, 1931.

Report from Superior Court, Worcester County; E. T. Broadhurst, Judge.

Separate actions by Francis G. Mentzer, and by Moses H. Mentzer and others, against the New England Telephone & Telegraph Company. Verdicts for defendant. On report from Superior Court.

Judgment on the verdicts for the defendant.C. E. Tupper and F. W. Morrison, both of Worcester, for plaintiffs.

M. F. Weston and J. N. Clark, both of Boston, for defendant.

RUGG, C. J.

By these actions in contract or tort, compensation is sought for property damages by fire alleged to have resulted from failure of the defendant to perform its duty in respect to summoning the fire department of the town of Hudson. Certain questions submitted to the jury were answered in favor of the plaintiffs. Verdicts were directed for the defendant, and the cases reported on all the admissions and evidence material to the questions of law raised.

The jury could have found the following facts: The plaintiff Francis G. Mentzer was a subscriber of the defendant on its telephone exchange in the town of Bolton and at all times entitled for himself and members of his family to unlimited telephone exchange service and toll service, and had paid all charges therefor. The defendant maintained a telephone exchange in the town of Hudson. The fire department of Hudson was connected with the Hudson exchange. The defendant maintained service on both exchanges at the times here material. The house in Bolton, owned by one of the plaintiffs, occupied by all of them and located about four miles from Hudson, was found to be on fire about half past seven o'clock in the morning of April 27, 1925. Immediately upon its discovery the wife of the plaintiff Francis G. Mentzer went to the telephone in the house, called the operator of the Bolton exchange, gave her name, said the house was on fire and asked that a general fire alarm be put in. This meant a general alarm for the town of Bolton. There was no evidence of failure by the operator to heed this request but evidence tending to show compliance with it. No contention of liability is or rightly could be rested on this transaction. Shortly after that call, the plaintiff Moses H. Mentzer called the Bolton exchange and after identifying himself said to the operator, ‘my house is on fire; I want the Hudson Fire Department, as there is ample time to save this house if they come now.’ The operator answered: ‘All right, I will call them.’ The operator did not call that department. The fire did not involve the part of the house where the telephone was located until twenty minutes after nine o'clock. Hudson adjoins Bolton and at the time of this fire maintained two complete fire fighting units ready for instant use, and its chief of fire department because of an arrangement between him and Moses H. Mentzer would have gone with fire apparatus at once to the Mentzer house if notified. About half past nine o'cloke in the same forenoon a call was sent to the Hudson fire department which responded promptly and arrived at the fire within eight or ten minutes and saved the barn on the premises. A neighbor, Mrs. Chase, living about a quarter of a mile away, testified that once of her own volition and once at the request of one of the Mentzer family she tried to get connection with the Hudson fire department but was told by the operator of the defendant that she had no authority to call the Hudson fire department without permission from some official of Bolton. The Bolton fire department consisted of one small chemical. There was no evidence of any arrangement between town officers of Bolton and those of Hudson that the fire department of the latter town should answer calls or attempt to extinguish fires in the former town, although the chief of the fire department of Hudson testified that he had been to fires in Bolton on individual calls from citizens of that town and was ready to go at any time. The defendant advised its subscribers that when certain emergencies exist such as fire they may refrain from looking up the number of the party with whom they wish to be connected and instead give the operator the name and address and the nature of the emergency and the operator will undertake to make the connection without the subscriber giving the number. The defendant conceded this in substance and in addition that ‘sometimes the operator will call directly and pass the message on, as for instance-if you said, ‘Emergency, police,’ and when the operator got hold of the police department you might have been sandbagged at that time, when the operator would pass the message on, an emergency call for police had come from such a number, and the form that takes in form of notice is this, if in any emergency you don't know the correct number, call the operator and say, ‘Emergency, fire,’ or ‘Emergency, police,’ and give your name and address to the person who takes your emergency call.' The defendant conceded that there was sufficient evidence of damages to real and personal property of the plaintiffs. The jury could have found that the defendant's operator did not put through the call to the Hudson fire department when requested by the neighbor, or by any member of the Mentzer family, and that (as also was conceded by the defendant at the trial) her failure to call that fire department when requested to do so by Moses H. Mentzer was the proximate cause of the damages sustained by the plaintiffs ‘so far as it was within the province of the jury pursuant to instructions' from the court ‘to determine damages and the proximate cause.

The plaintiffs seek to fasten liability on the defendant for damages resulting from delay in calling the Hudson fire department. The failure of the operator of the defendant's Bolton exchange to make the requested calls and connections is the basis of that liability.

The defendant is a public service corporation engaged in the transmission of intelligence by electricity within the Commonwealth. Its position with reference to the public is of a nature in many respects peculiar to itself. It is not a common carrier under the common law because it is not entrusted with the custody of anything of intrinsic value. It resembles a telegraph company but is different. As matter of common knowledge it does not take possession of messages to be sent over its wires. It affords facilities whereby its subscribers or customers may themselves talk with others with whom they desire to be connected. The telephone company puts its instrument and mechanisms in the premises of its subscribers and engages to render service for a stated time for specified compensation. A telegraph company commonly makes a separate contract for each message accepted by it for transmission. The transmission of intelligence by electricity is a business of a public character,to be exercised under reasonable public regulation subject to the same general principles as govern transportation of goods or passengers by common carriers. G. L. c. 159, §§ 10 to 44, and especially section 12(d); Grinnell v. Western Union Telegraph Co., 113 Mass. 299, 18 Am. Rep. 485;Pierce v. Drew, 136 Mass. 75, 77,49 Am. Rep. 7;Western Union Telegraph Co. v. Foster, 224 Mass. 365, 372, 113 N. E. 192;Public Service Commissioners v. New England Telephone & Telegraph Co., 232 Mass. 465, 122 N. E. 567, 4 A. L. R. 1662;New England Telephone & Telegraph Co. v. Department of Public Utilities, 262 Mass. 137, 145-151, 159 N. E. 743, 56 A. L. R. 784. A telephone company within this Commonwealth as matter of common knowledge does not undertake to transmit messages for the general public or for its subscribers. Its business is to afford to its subscribers and others opportunity to hold conversation with others and to transmit their messages by their own voices through the instrumentalities and facilities afforded by it. It is no part of the ostensible authority of its ordinary agents to undertake to receive messages and by their own voices to transmit them to others.

No public regulations govern the situation disclosed on this record. The rights and liabilities of the respective parties depend wholly upon the arrangements, express or implied, made between them in the light of their positions with reference to each other and of the public duty of the defendant.

The telephonic conversation between the Bolton operator of the defendant and Moses H. Mentzer, according to the testimony of the latter, means that he asked her to transmit his message to the Hudson fire department and did not ask to be connected with that department in order that he might himself talk with the person, who might answer that call. The case was tried and has been argued at the bar of this court by both parties on the theory that Moses H. Mentzer gave the message to the operator of the defendant on its Bolton exchange and expected her to transmit it. He did not wait to be connected himself with the Hudson fire department. The case will be treated as the parties have treated it. Other possible interpretations of the conversation therefore will be laid to one side.

It is to be observed that Moses H. Mentzer did not bring himself within the general scope of duty of the defendant. He did not ask to be connected with the Hudson fire department. No importance is attached to the circumstance that there was no direct connection between the Bolton telephone exchange and the Hudson telephone exchange and that calls between the two had to be routed through another exchange. It is the right of the standing in the relation of a subscriber to the defendant to receive from it toll service on request. It is no part of the right of a subscriber to cast upon the defendant the transmission of his message. He has a right to be connected so that he may deliver his own message. It is no part...