Rex, Benjamin F.

English

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THEAMERICAN LAW REGISTER.JUNE 1884.LIABILITY OF TELEGRAPH COMPANIES FOR FRAUD,ACCIDENT, DELAY AND MISTAKES IN THE TRANS-MISSION AND DELIVERY OF MESSAGES.(Cntinuedfrom May No., page 294.)PAaT II.-LIMIATION OF LIABILITY.§ 13. General Pyinciples.&-The power of telegraph companiesto make business regulations is recognised in most states by statute,but it is not dependant upon any statute, for it is a power inherentin all business corporations; it is subject, however, to certainlimitations. The only limitations with which we are here concernedare that all regulations must be reasonable and in harmony with theJaw of the land. All regulations which attempt to excuse telegraphcompanies from the performance of any duty which they owe to thepublic are considered unreasonable. Where such regulations areembodied in contracts in the form of conditions they are held to becontrary to public policy and invalid. Individuals and telegraphcompanies do not stand on an equal footing. Such companies areentrusted with great privileges and powers, but they will not bepermitted to use them like tyrants : Sweetland v. 1?1. . Miss. Tel.Co., 27 Ia. 433; Tyler et al. v. W. U. Tel. Co., 74 Ill. 168.§ 14. iabilityfor Neqligence, Fraud and Misconduct.-In orderto prevent oppression the courts have uniformly held, that telegraphcompanies can neither exempt themselves entirely from liability,VOL. XXXIL--45 (353)LIABILITY OF TELEGRAPH COMPANIESnor limit their liability to the amount paid for transmission, or anyother nominal sum, for gross negligence, fraud or misconduct,either by regulations or conditions in contracts : Candee v. W. U.Tel. Co., 34 Wis. 471; Passmore v. Same, 78 Penn. St. 238;Bartlett v. Same, 62 Me. 211; Tyler v. Same, 60 IlL. 421; s. c.74 Id. 168; G-rinnell v. Same, 113 Mass. 299; Wann v. Same,37 Mo. 472; White et al. v. Same, 14 Fed. Rep. 710;Becker v. Same, 11 Neb. 87; Sprague v. Same, Daly 200;Breese v. U. S. Tel. Co., 45 Barb. 274; Aiken v. Tel. Co., 5 S. C.358; Birney v. N. Y. J4 V. Tel. 0o., 18 Md. 342; Schwartz v.A. & P. Tel. Co., 18 Hun (N. Y.) 157; W. U. Tel. Co. v. Fon-taine, 58 Gco. 433; -Ellis v. Am. Tel. Co., 13 Allen 226. Andthe better, and more numerous authorities, hold that neither regu-lations, nor conditions in contracts, as to either night or unrepeatedmessages, attempting to limit liability to the amount paid for trans-mission, or any other nominal sum, for all errors or delays intransmission, or delivery, or for non-delivery, from whatever cause,can be permitted to affect the liability of such companies, for negli-gence, even where it is not gross. It is contrary to public policyto permit telegraph companies to exempt themselves from liabilityfor any failure to use that degree of care and skill, which theirbusiness calls for: T. U. Tel. Co. v. Graham, 1 Col. 230;Same v. Yenton, 52 Ind. 1; Same v. Neill, 57 Tex. 283 ; Same v.Brown, 58 Id. 170; Same v. TVeiting, 1 Tex. App. (Cir. Cas.),sect. 801; Same v. Catchpole, Id. sect. 268; Womack v. V. U.Tel. Co., 58 Tex. 176; Bartlett v. Same, 62 Me. 211; Tyler v.Same, 60 Ill. 421; s. c. 74 Id. 168; Pope v. Same, 9 Brad. (Ill.)283; Manville v. Same, 37 Ia. 214; Hibbard et al. v. Same, 33Wis. 558; Sweatland v. Ill. & Miss. Tel. Co., 27 Ia. 433; U. S.Tel. Co. v. Gildersleve, 29 Md. 2"32; Western Union Tel. Co. v.Shotter, (S. 0. La.) 18 Cent. La. J. 230.§ 15. Cases supporting Limitations.-In Missouri, Massa-chusetts, Nebraska, New York and Pennsylvania, the power oftelegraph companies to limit their liability for slight negligencein the transmission of unrepeated messages, has been upheld; butin the New York cases: Schwartz v. A. & P. Tel. Co. 18 Hun157; Breeze v. U. S. Tel. Co., 45 Barb. 274, the limitation wasby contract, and in New York it is well settled that all carriers canlimit their liability for negligence in that way. The only evidenceof negligence introduced in the other cases was evidence that mis-FOR FRAUD, ACCIDENT, DELAY, ETC. 355takes had been made in transmission, and there is some conflict of.authority as to whether such evidence is sufficient by itself to makeout a prima facie case of negligence, as will appear hereafter underthe head of Burden of Proof, sect. 21.In the case of Wann v. W U. Tel. Co., 37 Mo. 472, the onlyevidence of negligence introduced was that "r" had been substi-tuted for "s" in transmitting or transcribing the word "' sail."The message had been received subject to printed regulations pro-viding that the company would not be responsible for mistakes* * * in the transmission of unrepeated messages * * * fromwhatever cause they might arise, and fixing the charge for repeatingat half the usual rates, and the limit of liability for .repeated mes-sages at five hundred times the amount paid for transmission. Themessage was not ordered repeated, and the court held that theregulation as to repeating wasreasonable. IIn Becker v. W. U. Tel. Co., 11 Neb. 87, the only evidence ofnegligence was the fact of the substitution of "sixty" for "fifty"in an unrepeated message. The company's regulations providedthat it would "not be liable for mistakes * * * of any unrepeatedmessage beyond the amount received for sending the same," andthe pro-vision was held reasonable.In the case of Grinnell v. W. .Tel. Co., 113 Mass. 299, theonly evidence of negligence was 'the omission' of the word "an-swer." Evidence was offered to show that the omission resultedfrom ordinary n~gligence but was not admitted; in the case of.Ellis v Am. Tel. Co., 13 Allen (Mass.) 226, the only evidence ofnegligence was the fact of the substitution of "one hundredseventy-five (175)" for "one hundred twenty-five." Both messageswere written on contract blanks, such as are now used by theWestern Union, which provided that the company would not beresponsible "for mistakes * * * in the transmission of any un-repeated message" beyond the amount received for sending it,unless it was insured. Neither message was either repeated orinsured, and in both cases the regulation was held to exempt from.liability for ordinary negligence beyond the limit fixed.In the case of White et al. v. W. U. Tel. Co., 14 Fed. Rep.710 (Kas.); the message was written on a contract blank as in theMassachusetts cases, and was not repeated. The only evidenceof negligence was the substitution of "fifty" for "fifteen." TheLIABILITY OF TELEGRAPH COMPANIEScourt instructed the jury that the regulation as to repeating wasvalid so far as it concerned liability for ordinary negligence.In the case of Passmore v. W. U,. Tel. Co., 78 Penn. St. 238,regulations similar to those in the Massachusetts cases, though notit seems embodied in a contract, were held reasonable. The mes-sage was not repeated. The only evidence of negligence was thesubstitution of ' s" for " h."§ 16. Regulations conflicting with Statutes.-In those stateswhere telegraph companies are made liable by statute in a penaltyfor any failure, through negligence to receive, transmit or deliver amessage, all regulations, whether embodied in contracts or not,attempting to exempt them from liability (.3arvin et al. v. W. U.Tel. Co., Dist. Ct. N. Y. City, 15 Chic. L. N. 416), or limit theirliability to a smaller sum than the statutory penalty, are void:V. U. Tel. Co. v. Adams, 87 Ind. 598; Same v'. Buchanan, 35Id. 430; Same v. Meek, 49 Id. 53.§ 17. Regulations whieh have been held valid.-The followingregulations have been held reasonable and valid:1. Regulations exempting telegraph companies from liability, orlimiting their liability, for errors, delays and failures to transmitor deliver, occurring without fault or negligence on their part:Breese v. U. S. Tel. Co., 45 Barb. 274; White et al. v. W, U.Tel. Co., 14 Fed. Rep. 710; MeAndrew v The Ele. Tel. Co.,17 C. B. 3; Aiken v. Tel. Co., 5 S. C. 358; Tel. Co. v. Gistwold, 37 Ohio St. 301 ; Becker v. W. U. Tel. Co., 11 Neb. 87;W. U. Tel. Co. v. Catchpole, 1 Tex. App. (Cir. Cas.) sect. 268;Camp v. W. U. Tel. Co., 1 Met. (Ky.) 164; Passmore v.Same, 78 Penn. St. 238; Ellis v. Am. Tel. Co., 13 Allen (Mass.)226.2. Regulations providing that the company will only be respon-sible to the limit of its lines for messages destined beyond: Bald-win et al. v. U. S. Tel. Co., 45 N. Y. 744; Stevenson v. TheMontreal Tel. Co., 16 Up. Can. 530. But in the absence of sucha regulation, a telegraph company which receives pay for thetransmission of a message to a place beyond the limit of its line,with which it is in communication by the agency of other com-panies, is regarded as undertaking that the message will be trans-mitted and delivered at that place: DeButte v. N. Y., A. & B.E. Tel. Co., 30 How. Pr. 403.And where a company restricts its liability to the limits of itsFOR FRAUD, ACCIDENT, DELAY, ETc. 357own line, and does not expressly provide by its regulations thatthey shall apply to connecting lines, cofinecting lines over which amessage received by it may be transmitted, cannot take advantage ofsuch regulations: Squire v. W. U. Tel. Co., 98 Mass. 232.8. Regulations restricting liability for mistakes in the transmis-sion of obscure messages and cipher dispatches : sects. 9 and 10supra, and cases there cited.4. Regulations providing" that the company will not be liable fordamages in any case where the claim is not .presented in writingwithin sixty days after sending the message: Wolf v. W. U TeLCo., 62 Penn. St. 84; Young v. W. U. Tel. Co., 65 N. Y. 163;and so, also, it has been held, are regulations limiting the time totwenty days: .Hermann et al. v. W U. Tel. Co., 57 Wis. 562.§ 18. Upon whom Regulatis are -Binding-ZNiotie.-No reg-"ulation is binding upon either the sender or receiver of a message.unless he has either actual or constructive notice of it: ieRutte v.Tel. Co., 1 Daly 547. But if the sender of a message fills up andsigns a blank, upon the face of -which there is a printed referenceto conditions and regulations of the company upon the back of theblank (W. U. Tel. Co. v. Carew, 15 Mich. 525); or signs aprinted contract setting forth the company's regulations, and theconditions upon which the message is accepted, he is bound bysuch regulations and conditions, if reasonable, whether he readsthem or not: Grinual v. W. U. Tel. Jo., 113 Mass. 299; Red-path et al. v. Same, 112 Id. 71.But notice to the sender is not notice to the person to whom themessage is sent, and the rights of the latter are not affected byregulations and conditions in the company's contracts with theformer: DeLa Grange v. Tel. Co., 25 La. Ann. 383; Tel. Co. v.Dryburg, 35 Penn. St. 298 ; Harris v. W. U. Tel. Co., 9 Phila.88: contra Elis v. Am. Tel. Co., 13 Allen 226.In the case of arris v. W. U. Tel. Co., supra, the messagewas delivered by the company on a blank, with the followingprinted heading, viz.:"Western Union Telegraph Co. The rules of the companyrequire that all messages received for transmission shall be writtenon the message-blanks of the company, under and subject to theconditions printed thereon, which conditions have been agreed toby the sender of the following message ;" .but it was held, that theLIABILITY OF TELEGRAPH COMPANIESheading could not be considered to have given notice of a conditionas to repeating agreed to by the sender of the messages.§ 19. Regulations construed.-The following are cases in whichregulations have been construed:In Bryant v. Am. Tel. Co., 1 Daly 575, a regulation providingthat the company should not be responsible for mistakes or delaysin " transmission," was held not to apply to delays after the mes-sage had safely arrived at the place to which it was to be sent.In Aiken v. Tel. Co., 5 S. 0. 358, regulations substantially thesame as those on the night message-blanks now used by the WesternUnion, were held not to include negligence within their terms.In Birney v. N. Y. & W. Tel. (Jo., 18 Md. 342, regulations asto delay in transmission or delivery or non-delivery, were held notto include within their terms a failure to attempt to transmit.And in W. U. Tel. Co. v. Graham, 1 Col. 230, a regula-tion as to repeating, was held not to affect the liability of thecompany for a failure to deliver, but only its liability for mistakesin transmission.In the case of Young et al. v. W. U. Tel. Co., 65 N. Y. 163,the message was sent subject to the following condition, viz. : "Thecompany will not be liable for damages in any case where the claimis not presented in writing within sixty days after sending the mes-sage ;" and the court held that it was not a sufficient compliancewith the condition, to exhibit a written statement of the claim toan operator and take it back after he has read it. The claimshould be presented in writing to an officer of the company and leftin his possession.PART IV.-MISCELLANEOUS.§ 20. Contributory N~egligence.-Where a dispatch is so alteredthrough the negligence of a telegraph company as to make itunintelligible, the person to whom it is sent should at least haveit repeated before attempting to act upon it, and if he fails to do so,and suffers loss in consequence of acting upon what he erroneouslysupposes the sender meant, he will be guilty of contributory negli-gence, and cannot hold the company liable: Hart v. Direct Cable U.S. (o., 1 N. Y. (Car. R.) 93 ; IW. U. Tel. Co. v. -eill, 57 Tex. 292 ;but it is not contributory negligence to act upon a message withouthaving it repeated, if the only words which appear to have beenaltered are understood in their original sense, and taking them inFOR FRAUD, ACCIDENT DELAY, ETC.that sense the whole message appears clear and intelligible: -DeButte v. N. Y., '., Tel. Co., 30 How. Pr. 403.The case of Koons v. V. U. Tel. Co., 12 W. N. 0. 49; 16 Re-porter 472, bears upon the subject of contributory negligence onthe part of senders of messages in writing illegibly. In that case,however, the negligence was wholly on the part of the sender of themessage.§ 21. Burden of Proof.-In the absence of any valid limitationof liability for negligence, the plaintiff in an action against a tele-graph company, makes out a prima faeie case by proving, 1. Theundertaking to transmit and deliver. 2. Unreasonable delay:W. U. Tel. Co. v. Gougar et al., 84 Ind. 176; Same v. Bertram,1 Tex. App. (Cir. Cas.), sect. 1151; Same v. Weiting, Id., sect.801; Behm v. . U. Tel. Co., 8 Biss. (Cir. Ct.) 131 ; or, 3.Failure to deliver: 'I. .U. Tel. Co. v. Pontaine, 58 Geo. 433;Same v. Wenger, 55 Penn. St. 262; Baldwin v. U. S.. Tel.Co., 45 N. Y. 744; IF. U. Tel. Co. v. Graham, 1 Colo. 230;Same v. Fenton, 52 Ind. 1; Pope v. V. U. Tel. Co., 9 Brad. (Ill.)283; or, 4. That the dispatch delivered differs materially from theone sent :F. U. Tel, Co. v. Carew, 15 Mich. 525 ; Same v. Meek,49 Ind. 53; Telegraph Co. v. Griswold, 37 Ohio St. 313; Bald-win Y. U. S. Tel. Co., 45 N. Y. 744; Bittenhouse v. nd. Lineof Tel., 44 Id. 263; Turner v. Hawkeye Tel. Co., 41 Ia. 458;Bartlett v. TF. U. Tel. Co., 62 Me. 221; .and 5. Damages.The sufficiency of evidence of error to prove negligence, is notentirely settled however. Some authorities hold that it is neces-sary to prove that the error occurred through negligence where thecompany is exempted by its regulations from liability for errorsoccurring without negligence: Sweatland v. 111. &- Hiss. Tel. Co.,27 Ia. 433; Aiken v. Tel. Co., 5 S. C. 358; Womack v. W. U.Tel. Co., 58 Tex. 176.And all the cases cited in Part IIL, which hold that telegraphcompanies may limit their liability for ordinary negligence, holdalso, with the exception of Schwartz v. A. & P. Tel. Co., that proofof a mistake is not sufficient to make out a prima facie case of grossnegligence.BENJAMIN F. REx.St. Louis, Mo.

Liability of Telegraph Companies for Fraud, Accident, Delay and Mistakes in the Transmission and Delivery of Messages (Continued)

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Liability of Telegraph Companies for Fraud, Accident, Delay and Mistakes in the Transmission and Delivery of Messages (Continued)

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