Vigeant v. Postal Tel. Cable Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation260 Mass. 335,157 N.E. 651
Decision Date02 July 1927

260 Mass. 335
157 N.E. 651


Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1927.

Appeal from District Court of Lowell; Thomas J. Enright, Judge.

Action by Irene Vigeant against the Postal Telegraph Cable Company. From an order dismissing a report, defendant appeals. Order reversed, and judgment for defendant.

[260 Mass. 335]

[157 N.E. 652]

G. K. Gardner, of Boston, and R. A. Cutter, of Salem, for appellant.

Harvey, Harvey & Walsh and Frederic S. Harvey, all of Lowell, for appellee.


[1] This is an action of tort whereby the plaintiff seeks to recover compensation for personal injuries resulting from the collision of an automobile, in which she was riding, with a pole owned by the defendant. Both the [260 Mass. 336]plaintiff and the driver of the automobile in which she was riding were found to have been in the exercise of due care. No contention was made in the trial court or in the argument at the bar of this court that the defendant was negligent. Its liability was found and is now conceded to rest exclusively on G. L. c. 166, § 42. The pertinent words of that section are:

‘A telegraph company shall be liable in damages to a person injured in his person or property by the poles, wires or other apparatus of such company.’

That statutory mandate imposes an absolute liability on a telegraph company irrespective of negligence. See Duggan v. Bay State Street Railway, 230 Mass. 370, 381, 382, 119 N. E. 757, L. R. A. 1918E, 680, and cases cited; New York Central Railroad v. White, 243 U. S. 188, 198, 20437 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and cases cited; Opinion of Justices, 251 Mass. 591, 601,148 N. E. 889.

[2] The single contention here urged in behalf of the defendant is that the statute deprives it of the equal protection of the laws. That contention is based on the ground that the statute subjects the defendant and other telegraph companies to unconditional liability, regardless of their due care in the erection and maintenance of their poles, wires or other apparatus and without reference to their fault, and that no such liability is imposed upon telephone companies, or electric light or power companies, or street railway companies, and that the liability of such other companies is left to be ascertained solely by reference to the common law. This, it is argued, creates under discrimination against telegraph companies and unequal favoritism toward other companies of like general nature.

[3] The court take judicial notice of the facts within common knowledge that electric light, heat and power companies and telephone companies and street railway companies maintain poles, wires and apparatus within, upon the under public ways in the commonwealth. All such companies maintain poles bearing wires charged with electricity in verying degree, some carrying a much more powerful current than do the wires of a telegraph company. State v. Consumers' Power Co., 119 Minn. 225, 232, 137 N. W. 1104; 41 L. R. A. (N. S.) 1181, Ann. Cas. 1914B, 19;Commonwealth v. Pear, 183 Mass. 242, 245, 66 N. E. 719,67 L. R. A. 935;Delano v. Smith, 206 Mass. 365, 371, 92 N. E. 500,30 L. R. A. (N. S.) 474;Roosen v. Peter Bent Prigham Hospital, 235 Mass. 66, 70, 126 N. E. 392, 14 A. L. R. 563;[260 Mass. 337]Foley v. Boston & Maine Railroad, 193 Mass. 332 334,79 N. E. 765,7 L. R. A. (N. S.) 1076;Greene v. City of Fitchburg, 219 Mass. 121, 125, 106 N. E. 573;Chartier v. Barre Wool Combing Co., Ltd., 229 Mass. 153, 156, 118 N. E. 263;MacGilvray v. Boston Elevated Railway, 229 Mass. 65, 118 N. E. 166, 4 A. L. R. 283;Boston v. Treasurer and Receiver General, 237 Mass. 403, 416, 130 N. E. 390;Barrows v. Farnum's Stage Lines, Inc., 254 Mass. 240, 247, 150 N. E. 206;Lincoln Gas & Electric Light Co. v. Lincoln, 250 U. S. 256, 268, 39 S. Ct. 454, 63 L. Ed. 968;Block v. Hirsh, 256 U. S. 135, 154, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165;Newton v. Consolidated Gas Co. of New York, 258 U. S. 165, 174, 42 S. Ct. 264, 66 L. Ed. 538;Chastleton Corp. v. Sinclair, 264 U. S. 543, 548, 549, 44 S. Ct. 405, 68 L. Ed. 841.

Such other companies enjoy substantially the same privileges in the public ways as do telegraph companies. G. L. c. 166, §§ 21 to 43, both inclusive. Telegraph companies alone are made liable without fault for injuries resulting to others from their structures under section 42, here in question. All other such companies are excluded from its operation. It has been held that said section 42 is not applicable to electric light companies. Hector v. Boston Electric Light Co., 161 Mass. 558, 570, 37 N. E. 773,25 L. R. A. 554.Illingsworth v. Boston Electric Light Co., 161 Mass. 583, 585, 37 N. E. 778,25 L. R. A. 552. See, as to a street railway, Curran v. Boston Elevated Railway, 249 Mass. 55, 58, 143 N. E. 821. The question does not appear to have arisen as to telephone companies or specifically as to electric heat or power companies.

The subject of equal protection of the laws

[157 N.E. 653]

has been considered somewhat in our own decisons. No case has arisen in this jurisdiction very closely resembling in its facts the case at bar. In most, although not in all, of our cases the reasonable classification permissible to the legislative department of government has been upheld. Commonwealth v. Libbey, 216 Mass. 356, 358, 103 N. E. 923, 49 L. R. A. (N. S.) 879, Ann. Cas. 1915B, 659; Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 78, 116 N. E. 961, 8 A. L. R. 1463;Holcombe v. Creamer, 231 Mass. 99, 104 to 107, 120 N. E. 354;Commonwealth v. Titcomb, 229 Mass. 14, 118 N. E. 328;Massachusetts General Hospital v. Belmont, 233 Mass. 190, 201 to 205, 124 N. E. 21;Opinion of Justices, 207 Mass. 601, 94 N. E. 558,34 L. R. A. (N. S.) 604;Opinion of Justices, 211 Mass. 618, 98 N. E. 337;Opinion of Justices, 251 Mass. 569, 600, 601, 147 N. E. 681;Bogni v. Perotti, 224 Mass. 152, 156, 157, 112 N. E. 853, L. R. A. 1916F, 831; Commissioner of Corporations and Taxation v. Co-operative League of America, 246 Mass. 235, 239, 140 N. E. 811.

Discussions have been much more frequent and comprehensive[260 Mass. 338]in the Supreme Court of the United States. To these resort naturally is had for enlightenment as to the meaning of this constitutional guaranty and its application to differing states of fact. In Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 S. Ct. 1064, 1070 (30 L. Ed. 220), it was said concerning the equality clause of the Fourteenth Amendment to the Constitution of the United States, that it is universal in its ‘application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.’ In Atchison, Topeka & Santa Fé Railway v. Vosburg, 238 U. S. 56, 59, 35 S. Ct. 675, 676 (59 L. Ed. 1199, L. R. A. 1915E, 953, are these words:

The constitutional guaranty of equal protection of the laws does ‘not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation.’

The principle was stated in Barrett v. Indiana, 229 U. S. 26, 30, 33 S. Ct. 692, 693 (57 L. Ed. 1050), as follows:

‘The Legislature is permitted to make a reasonable classification and before a court can interfere with the exercise of its judgment it must be able to say ‘that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.’ This was one test laid down in Missouri, Kansas & Texas Railway v. May, 194 U. S. 267 [269,24 S. Ct. 638, 48 L. Ed. 971].'

In Terrace v. Thompson, 263 U. S. 197, 218, 44 S. Ct. 15, 19 (68 L. Ed. 255), occurs this language:

‘That clause [the equal protection clause] secures equal protection to all in the enjoyment of their rights under like circumstances.’

In Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, at pages 78, 79, 31 S. Ct. 337, 340 (55 L. Ed. 369, Ann. Cas. 1912C, 160), where a statute was upheld, it was said with reference to equal protection of the laws:

‘The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: (1) The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. (2) A classification having some reasonable basis does not offend [260 Mass. 339]against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. (3) When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. (4) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Bachtel v. Wilson, 204 U. S. 36, 41 [27 S. Ct. 243, 51 L. Ed. 357];Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36 [30 S. Ct. 676, 54 L. Ed. 921,47 L. R. A. (N. S.) 84];Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 256 [28 S. Ct. 89, 52 L. Ed. 195];Munn v. Illinois, 94 U. S. 113, 132 [24 L. Ed. 77];Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 615 [19 S. Ct. 553, 43 L. Ed. 823].’

One of the most elaborate statements is found in Truax v. Corrigan, 257 U. S. 312, at pages 332, 333, 42 S. Ct. 124, 129 (66 L. Ed. 254,27 A. L. R. 357).

‘The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality,...

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