Western Union Telegraph Company v. Blanchard.

* * *

professional employees and bailees, yet there is no reason for holding them as insurers like common carriers. Common carriers transport goods, merchandise and other corporeal materials, which are constantly in their possession from the commencement of their trip until the destination is reached, and it is entirely reasonable that they should guard and protect these goods against all dangers which can be warded off by human power. But telegraph companies transmit ideas-intangible and fleeting things-which when placed upon the wire instantly escape from the hands of the operator, and in a moment, yea, in the twinkling of an eye, are hundreds and thousands of miles away, far beyond the reach and control of him who started them upon their distant mission, passing through different parallels of latitude or degrees of longitude, as the case may be, with the rapidity of thought, but encountering for themselves all the dangers or obstacles that may be met by the way. To apply the rule of common carriers to these companies would, it seems to us, be extremely unjust, and to hold them absolutely liable as insurers would greatly impair this mode of correspondence, crippling if not destroying a most important and growing department of business. Such we do not understand to be the law as settled in England or in a majority of the American States. It is true there is a lack of uniformity in the decisions, and in many cases where the point has not been distinctly adjudged will be found many loose and somewhat illdefined expressions tending to the application of the stringent doctrine of common carriers, but the current of authority is decidedly opposed to this. 2 Thompson on Neg. 836, and the numerous cases cited in the note at that page. * ** Our opinion is that telegraph companies, as to the work which they engaged to do, belong to that department known as bailment, especially to that class styled locatio operis faciendi, and that they are governed by the principles of law, which have been long since established in reference to this department." Mr. Lawson in his work on "Contracts of Carriers," p. 3, says: a disputed question whether or not a telegraph company is a common carrier, the weight of authority, in this country at least, answering it in the negative. The method by which these conclusions are reached is singular; consisting simply in an attempt to make these modern inventions fit the definitions which Chief Justices HOLT and ELLENBOROUGH gave, and finding them either too wide or too narrow for the purpose, to consider them as of another class. It must be conceded that had the palace car and telegraph of this country been as well known to the old common-law judges as were the wagoner and messenger of their day they would scarcely have excluded the first two in establishing a rule for the better protection of the property of the public while intrusted to the hands of others. That the accommodation offered to the passenger was more luxurious or that the physical agency employed was a million times swifter in its operation, would have presented a very poor reason for the sleeping-car evading the duties of the wagoner, or the telegraph company those of the messenger."

"It is

Conditions as to repeating messages, mistakes, delays, etc. In Passmore v. WesternUnion Telegraph Co., 9 Phila. 90, it was held that "a regulation that a telegraph company will not be responsible for the correctness of messages unless repeated, is not so far contrary to private interest or the public good as to justify a court of justice in pronouncing it void," the court said: "We are fully aware of the importance of the question, and have no desire to relax the just measure of accountability in cases of this description. Telegraphy, like the other powerful instruments which science has placed at the disposal of man, is capable of being a source of injury instead of benefit. That the intelligence which it conveys is prompt will serve no good purpose if mistakes occur during the process of transmission. The difficulty of avoiding them is, notwithstanding, greater than might at first appear. The function of the telegraph differs from that of the post-office in this, that while the latter is not concerned with the contents of the missive, and merely agrees to forward it to its address, the former undertakes the much more difficult task of transcribing a message written according to one method of notation, in characters which are entirely different, with all the liability to error necessarily incident to such a process. Nor is this all. The telegraph operator is separated by a distance of many miles from the paper on which he writes, so that his eye cannot discern and correct the mistakes committed by his hand. It was also contended during the argument, that the electric fluid which is used as the medium of communication is liable to perturbations

Western Union Telegraph Company v. Blanchard.

arising from thunder-storms, and other natural causes. It is therefore obvious that entire accuracy cannot always be obtained by the greatest care, and that the only method of avoiding error is to compare the copy with the original, or in other words, that the operator to whom the message is sent should telegraph it back to the station whence it came.

"So far the inquiry is plain ; but here a question of some difficulty presents itself. Should every message be repeated, or only those which are of sufficient importance to make such a precaution requisite? In answering this question it must be remembered that the repetition of a message necessarily involves delay and expense. The mail may transmit any number of letters simultaneously, but a telegram has exclusive possession of the wires during its passage over the line. While one message is repeated, others are delayed, which may at times be of serious consequence. There is moreover an increase of cost, which, though trivial in each instance, would be formidable in the aggregate, and necessarily augment the rate of charging in a ratio which has been roughly calculated at one-half. Such must be the result, if every one who wishes to engage rooms at a hotel, or put a question of friendly interest, must submit to the expense and possible delay of repetition.

"On the other hand, the convenience of the opposite course is not less manifest. Instead of passing every message twice over the line, those only are to be repeated which from their importance demand peculiar care. And as the company cannot know what telegrams fall within this category, the question is referred to the person chiefly interested. Obviously he who sends a communication is best qualified to judge whether it should be returned for correction. If he asks the company to repeat the message, and they fail to comply, they will clearly be answerable for any injury that may result from the omission. If he does not make such a request, he may well be taken to have acquiesced in the conditions which they prescribe, and at all events cannot object to the want of a precaution he has virtually waived. It is not a just ground of complaint that the power to choose is coupled with an obligation to pay an additional sum to cover the cost of repetition. If it were not, the company would in all probability be called on to repeat every message, with the inevitable result of putting the public to an increased expense, without any corresponding gain.

"We are therefore inclined to think that the regulation in question, or at least so much of it as has been considered in this opinion, is well calculated to reconcile the economy and dispatch which the mass of the community principally desire, with the security against accident which each individual is entitled to demand. But we limit ourselves to saying that it is not so far contrary to private interest or the public good, as to justify a court of justice in pronouncing it invalid.

"We have not arrived at this conclusion without a just diffidence arising from the novelty of the subject and the want of any controlling authority in this State. But it is satisfactory to know that the principles set forth above are sustained by the judgment of the Supreme Court of Massachusetts, in Ellis v. Telegraph Co., 13 Allen, 226; and also by that rendered in Camp v. Telegraph Co., 2 Metc. (Ky.) 164," on appeal this de cision was affirmed 78 Penn. St. 238. Same principle: Ripley v. Ætna Ins. Co., 30 N. Y. 136, 151, 163; Roach v. N. Y. and Erie Ins. Co., id. 546.

The condition as to repetition of message is reasonable and valid: McAndrew v. Electric Tel. Co., 17 C. B. 3; 33 Eng. Law & Eq. 180; Potts v. Electric Tel. Co., 18 Law Rep. 477; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Breese v. U. S. Tel. Co., 31 How. 87; 45 Barb. 274; 48 N. Y. 132; 8 Am. Rep. 526, 532; Ellis v. Am. Tel. Co., 13 Allen, 235; Gildersleeve v. U. S. Tel. Co., 29 Md. 232; 9 Am. Rep. 149; Kinghorne v. Montreal Tel. Co., 18 U. C. Rep. 60; Wann v. West. Union, etc., 37 Mo. 472; Redpath v. Tel. Co., 112 Mass. 71; Grinnell v. Tel. Co., 113 id. 299; Bartlett v. Tel. Co., 62 Me. 209; Young v. Tel. Co., 65 N. Y. 163; Tel. Co. v. Fenton, 52 Ind. 1; Lassiter v. Tel. Co., 89 N. C. 334.

66

In Lassiter v. Tel. Co., 89 N. C. 334, the plaintiff's cotton factor sent to the plaintiff the following unrepeated message: "Can get ten and three-eighths for your cotton-answer;" and that delivered to plaintiff contained the word "* fourths " instead of eighths;" and thereupon the plaintiff at once directed a sale of the cotton; held, in an action for damages for loss alleged to have been sustained by reason of the mistake, that the plainti”. VOL. XLV-62

Western Union Telegraph Company v. Blanchard.

was not entitled to recover, and the court said, "The electric ticks to be given at one end of the line and to be interpreted and read at the other are not articulate sounds like those of the human voice, and are much more liable to be misunderstood; and then the individual handwriting of the sender himself and his meaning may be understood. Το guard against error from these and other causes to which the mode of conveying intelligence is peculiarly exposed, it is deemed but a reasonable and fair precaution to secure entire correctness that the message should be returned, so that it will be certainly known it has correctly been carried to the person to whom it is addressed, with the added compensation for its transmission."

Where a telegraph company furnishes its customers printed blanks containing the terms upon which it proposes to transmit messages, a delivery to the company for transmission of a message written upon one of such blanks is an acceptance of the terms and constitutes a contract between the parties. Young et al. v. Western Union Telegraph Co., 65 N. Y. 63: Baxter v. Dominion, etc., 37 Upper Can. Q. B. 470; Wolf v. W. U. Tel. Co., 62 Penn. St. 83; 1 Am. Rep. 387; U. S., etc. v. Gildersleeve, 29 Md. 232; 9 Am. Rep. 149; Allen Tel. Cas., 403; Birney v. N. Y., etc., 18 Md. 341; True v. International, 60 Me. 9; 11 Am. Rep. 156, 168, note: Breese v. U. S. Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526, 532, note; Wann v. West. Union, etc., 37 Mo. 472; Redpath v W. U. Tel. Co., 112 Mass. 71; 17 Am. Rep. 69; Wornack v. West. Union, 58 Tex. 176; 44 Am. Rep. 614; Passmore v. W. U. Tel. Co., 78 Penn. St. 238: Jones v. West. Union, etc., 17 Rep. 231.

It will be presumed that the sender understood the contents of the blank, and accepted the terms, and he is estopped from denying or disputing the agreement. Breese v. U. S. Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526, 532, note. Belger v. Dinsmore, 51 N. Y. 166; Womack v. W. Union, 58 Tex. 176; 44 Am. Rep. 614.

Neither can he in absence of misrepresentation or fraud, with full opportunity of infor mation as to its contents, avoid the contract upon the ground of his negligence or omission to read it, or to avail himself of such information. See 24 Am. Rep. 283; Breese v. U. S. Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526, 532, note; Soumet v. National, etc., 66 Barb. 284; Womack v. W. Union, 58 Tex. 176; 44 Am. Rep. 614.

A person sending a message by telegraph, who knows of the existence of certain rules and regulations adopted by the telegraph company touching the transmission of messages, though he does not use the blank of the company upon which they are printed, is as much bound by them, as if he had written the message sent on such a blank prepared by the company. West Union v. Buchanan, 35 Ind. 429; s. c., 9 Am. Rep. 744.

A telegraph company has no right to insist on the sender of a message consenting to have it stamped "accepted subject to delay." Marvin v. West. Union, District Ct., N. Y. City; 15 Chicago Leg. News. 416.

A condition that the company shall not be liable for mistakes or delays in the transmission or delivery, or non delivery of any message, beyond the amount received by the company for sending the same, has been held to be unreasonable, and does not exonerate the company from liability beyond the sum paid for the transınission of the message. True ▾. International, 60 Me. 9; 11 Am. Rep. 156, 168, note; Hibbard v. W. Union, 33 Wis. 558; 14 Am. Rep. 775; Bartlett v. W. Union, 62 Me. 209; 16 Am. Rep. 437, Tyler v. West. Union, 60 IU. 421; 14 Am. Rep. 38; s. c., 74 Ill. 168; 24 Am. Rep. 279, 283, note. But see contra, Grinnell v. W. U., etc., 113 Mass. 299; 18 Am. Rep. 485; Beeker v. West. Union, 11 Neb. 87; 38 Am. Rep. 356, 361, note.

In White v. West. Union, etc., 14 Fed. Rep. 710, it was held that the company was not responsible where errors or mistakes in the transmission of the dispatch occurred through climatic influences, temporarily affecting the insulation of the wires, or the working of the instruments.

Rules exempting the company from liability for the non transmission and non delivery of unrepeated messages, do not apply to a case where no effort is made by the company or its agents to put a message on its transit. Birney v. N. Y., etc., 18 Md. 342.

In Sprague v. West. Union, etc., 6 Daly, 200, it was held that the failure to send a message at all, was not a "mistake or delay in the transmission or delivery, or a non delivery ' of the message, within the meaning of the stipulation signed by the plaintiff, limiting the damages arising from such causes (except upon certain conditions with which the plaintiff had not complied), to the amount received by the company for sending the message. So,

Western Union Telegraph Company v. Blanchard.

that the plaintiff did not cause a message to be repeated, as required by a regulation of the company, is no defense to an action for a failure to deliver the message after it was received at the office to which it was addressed. West. Union, etc., 1 Col. 230; 9 Am. Rep. 136, 149, note; Bell v. Dominion, etc., 3 Leg. News, 406.

In Bell v. Dominion Tel. Co., 3 Legal News, 406, the court said: 'Then, as to the condition, it appears to me equally clear that such a condition could not shield the company from the consequences of their own neglect. I can understand such a thing applying to misdirection of the message, not the fault of the company; when it comes to not delivering the message at all, rightly or wrongly, as occurred here, the impossibility of the company pleading it as a dispensation from any obligation on their part is a principle that runs through all these reported cases. And in Cooley on Torts, page 687, under the head 'Restriction of liability by telegraph companies, ' I 'find a case cited in the note where it was held that the force of the condition seemed to be restricted to errors arising from causes beyond the companies' control; and another where it was denied that telegraph companies can contract not to be responsible for their own negligence. The text of our own law in relation to common carriers is explicit. Article 1676, Civ. Code, says: Notice by carriers, of special conditions limiting their liability, is binding only upon persons to whom it is made known; and notwithstanding such notice and the knowledge thereof, carriers are liable whenever it is proven that the damage is caused by their fault, or the fault of those for whom they are responsible."

"Now applying these principles to the case in hand, it is very evident that the fault of the company, defendant here, consisted in not delivering the message to any Mr. Bell at all, or to any one else, a fault that would not have been remedied if it had been written over again any number of times."

Where a statute fixes the amount which a telegraph company shall pay as a penalty if it fails to comply with its requirements, the company cannot change the degree or measure of her statutory liability by the adoption of rules and regulations. West. Union, etc. ▼. Buchanan, 35 Ind. 429; 9 Am. Rep. 744; West Union v. Adams, 87 Ind. 598; 44 Am. Rep. 776.

Cannot contract against negligence. Telegraph companies cannot contract against their own negligence. Wolf v. Western, etc., 62 Penn. St. 83; 1 Am. Rep. 387; Sweetland v. Illinois, etc., 27 Iowa, 433; 1 Am. Rep. 285; Breese v. U. S., etc., 48 N. Y. 132; 8 Am. Rep. 526, 532, note; West. Union v. Graham, 1 Col. 230; 9 Am. Rep. 136, 149, note; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; 9 Am. Rep. 149; West. Union v. Buchanan, 35 Ind. 429; 9 Am. Rep. 744; Hibbard v. West. Union, 33 Wis. 558; 14 Am. Rep. 775; Candee v. W. Union, 34 Wis. 471; 17 Am. Rep. 452; Mannville v. West. Union, 37 Iowa, 214; 18 Am. Rep. 8; Telegraph Co. v. Griswold, 37 Ohio St. 301; 41 Am. Rep. 500; Bell v. Dominion Tel. Co., 3 Leg. News, 406; Tyler v. W. Union, etc., 60 Ill. 421; 13 Am. Rep. 38, 53, note.

A telegraph company having in its employment an operator who does not know of the existence of a town which is the county seat of a neighboring county, and on the line of the telegraph, is guilty of gross negligence. West. Union v. Buchanan, 35 Ind. 429; 9 Am. Rep. 744.

Presentation of claim within a certain time. A condition that a telegraph company "will not be liable for damages in any case, where the claim is not presented in writing sixty days after sending the message,' is neither contrary to law, unreasonable, nor contrary to public policy. Wolf v. West. Union, 62 Penn. St. 88; 1 Am. Rep. 387. In Young v. Western Union Telegraph Co., 65 N. Y. 163, the plaintiffs delivered to defendant for transmission a message written upon a blank so furnished by it, which contained a clause to the effect that the company would not be liable for damages in any case unless a claim therefor should be presented in writing within sixty days after sending the message. The message was not correctly transmitted. An imperfect statement of the damages claimed was presented by plaintiff's agent to the operator or receiving clerk in defendant's office, who, after examining it, handed it back to the agent, stating he had nothing to do with it, referring the agent to the officers of the company. He went to the officers' rooms, but found them absent. No other claim was presented until after the expiration of the sixty days. Held, that the agreement was consistent with public policy; that the presentation of the incorrect claim to the operator or clerk was not, in

Western Union Telegraph Company v. Blanchard.

the absence of evidence that any power or duty in reference to the subject-matter had been conferred upon him by defendant, a compliance with the condition, and that defendant was not liable.

The court said, GRAY, C.: "The defendant's blanks contained printed terms upon which it proposed to transmit messages over its line, subjoined to which was the following. 'Send the following message subject to the above terms, which are agreed to.' Following that was the plaintiff's written message. The statement of the terms by the defendant upon which messages would be transmitted over its line, and the acceptance of those terms by the plaintiff, constituted a contract as to the terms upon which the message, out of which this controversy has arisen, was sent (Breese v. The U. S. Tel. Co., 48 N. Y. 132, 139, 141; 8 Am. Rep. 526, 532, note: Belger v. Dinsmore, 51 N. Y. 166, 173; Wolf v. The W. Union Tel. Co., 62 Penn. St. 82, 87; 1 Am. Rep. 387); and so it was held on the trial. One of the terms of this contract thus consummated was, that the defendant would not be liable for any damages in any case where the claim for damages should not be presented in writing within sixty days after sending the message. The message was sent on the 2d day of December, 1867, and the only evidence of a notice by the plaintiff to the defendant, of any kind, within sixty days after sending the message, was, that an incorrect statement of the damages claimed by the plaintiffs was made in their behalf between the fifteenth and twentieth of January next after the message was sent, and carried by the plaintiff's agent to the first floor of the defendant's office, in the city of New York, and there shown to an operator or receiving-clerk, who, upon looking at it, handed it back to the agent saying that he had nothing to do with it, and referred him (in the language of the witness), to the officials up stairs, where the agent went and inquired for both the defendant's president and treasurer, and upon being informed that each of them was absent, returned to his office, tore up the statement he had exhibited to the operator or the receiving clerk: and on the sixth of the following month (February) after more than sixty days had elapsed after the day on which the message was sent, addressed a note to the defendant's president, containing a statement of the damages claimed by the plaintiff, which was carried and left at the office of the defendant; and this was held, by the judge before whom the trial was had, to be, if the jury believed the evidence, a compliance with the agreemen. requiring the plaintiff's claim for damages to be presented, in writing, within sixty days after sending the message, as a condition of the defendant's liability. In so ruling, an error was committed, for which the judgment which followed the ruling thus made was properly reversed. If presenting a claim in writing to an agent of the company authorized to exercise any of its corporate powers in relation to the subject-matter of the claim, and permitting it to be perused, and then receiving it back from him and destroying it would be a compliance with the agreement, even that was not done in this case. The person to whom it was presented was not shown to be a representative of the company in any capacity which conferred upon him any power or duty relating to the subject-matter of the claim, but was rather a servant of the company, holding the same legal relation to it that an ordinary operative holds in a business or manufacturing establishment to his employer, and to whom a tender of the performance of a contract would not bind his principal; and this was the only presentation of the plaintiff's claim, in any way, until the time within which it was to be presented in writing had expired."

In Heiman v. West. Union Tel. Co., 57 Wis. 562, the main question was whether plaintiffs were bound by the condition in the printed rules and regulations of defendant, which if accompanying the original message to be sent or known by plaintiffs to exist in respect to such message, became the contract between the parties, "that no claim for damages shall be valid unless presented in writing within twenty days from sending the message." The message was a night dispatch sent May 7th, and promptly received at the office in New York, and immediately taken to the hotel, where one of the plaintiffs was stopping at the time, but was not then handed to him because of an error in the name which read, "Herman " instead of "Heimann." The dispatch was handed to the proper person May 14. No claim for damages for such delay was presented to the company in writing or otherwise, until the 31st of May following, more than twenty days from the sending on the 7th. Held, that the delay in receiving the message occasioned by the mistake or error of the company should not modify the condition and extend the time, because there was time enough left for such notice between the 14th and 27th of May.