The opinion of the Court was delivered by
Willard, A. J.
The admission made by the operator employed by the defendants in transcribing and delivering the message in question was clearly inadmissible as evidence. It does not appear that such admission was made concurrently with, and so as to form part of, any act performed by the agent in the course of his agency ; but, on the contrary, that they were independent statements, not called for by the nature of his duties, and made several days after that was completed which constituted the alleged wrong on which the case rests. Statements of this character are entitled to no priv[370]*370ilege, but are to be considered as hearsay merely. It would follow that a new trial would have to result on this ground of error alone.
The propositions on which the defendants rely are that the plaintiff has no right of action, inasmuch as he was merely the receiver of a message sent by another, who employed the defendants and paid the consideration for the performance of such service; and that, by the terms of the contract, under which the service was performed, the defendants are exempt from liability for any damage that may have resulted from an error in transcribing and delivering the message sent.
The plaintiff is a privy to the contract under which the service was performed, and has a right to demand due performance. The contract in question is one of a peculiar class, as affecting questions of liability and privity arising under it. It is a contract with one exercising a public employment under express statute powers created for that purpose. The nature of the occupation of that class of persons, and the tender of their services to the community, makes them common agents for the transmission of messages for all persons who may desire and pay for such service, to any person, either as the final receiver of such message or as a means or agent for its further transmission. The object of the contract is to modify and limit the contract which, by operation of law, would arise between the common carrier of messages and any person employing such carrier, in the absence of any stipulation of terms between them. The foundation of the contract is the nature of the carrier’s occupation and the fact of employment. The legal consequences flowing from such employment are what the special contract seeks to modify or limit. Every such contract implies a sender of a message, a receiver, and an agent of transmission. The nature of the contract is, in this respect, the same, whether the rights and duties of the respective parties are defined by operation of law, or by express stipulations between themselves. It would, therefore, follow that the question whether the receiver of the message is a privy should receive the same solution, whether the contract is the result of the operation of law or of special terms of agreement between the parties.
The simplest form, then, under which the question of the privity of the plaintiff can be examined, is upon the assumption that a third person had delivered a message to the defendants for transmission to the plaintiff, in the delivery of which the plaintiff had a [371]*371pecuniary interest, and without the stipulation of any terms of transmission. In the case supposed would not the receiver accepting such service be bound to pay for it, and be entitled to demand due performance on the part of the carrier ? Clearly he would.
The fact that the receiver had not directly conferred with the carrier as to the duty to be performed would be unimportant. The carrier who undertakes to carry for all dispenses with the necessity of knowing and dealing directly or personally with his employer. His offers of service are intended to meet the requirements of all cases where a message, in ordinary course, is to be transmitted. Such cases embrace those in which the message is transmitted for the benefit of the sender, those in which it is for the benefit of the receiver, and those in which it is for the mutual benefit of both sender and receiver. Construing his contract by the nature of the service to be performed, it is clear that the party for whose benefit the service is to be performed is to be regarded as considered and included in the obligation resulting from the fact of employment, whether that person stands to it in the relation of sender or receiver. If such is the conclusion where the compensation for the service is not paid until the service is performed, it cannot be altered by the fact that the service is paid for in advance, nor by the consideration as to which one of the parties inclhded paid it. The time when a -consideration is paid, and the perso*n by whom paid, are not essential* elements of the question, the parties to the obligation being clearly f known by the objects intended by the contract.
It is equally clear that any stipulation of an express nature, intended to mould and limit the obligation, must be considered as attaching to the obligation in its fullest extent, and affecting equally all the persons related to it, either as sender, receiver or agent of transmission. Under this view of the contract the plaintiff is entitled to enforce its provisions as a direct party in interest.—Godwyn vs. Douglass, Chev., 174.
The regulation of the defendants, in conformity with which the terms of the contract limiting their liability was made, was a reasonable regulation, and such as the, defendants were authorized to make. In examining the proposition just stated, it must be borne in mind that the analogy between common carriers of goods and common carriers of messages is not perfect. The nature of the services performed differs materially in the two cases, and the real responsibility differs in a corresponding manner. The difference is [372]*372obvious, and has been frequently commented upon.—Ellis vs. Tel. Co., 13 Allen, (Mass.,) 226. In this respect the refusal to charge that such a difference existed is open to the objection of leaving the opposite proposition, namely, that the responsibilities in the two cases are identical upon the minds of the jury as the law of the case.
In pursuance of the regulation in question certain conditions were printed upon the blanks, on which the sender of a message was required to write the message for transmission, and were so connected with the message, by language importing acceptance by the sender of the terms of such' conditions, that the whole formed together a contract of which the conditions formed part.
The conditions were as follows :
“No. 45.
“half-rate messages.
“ The Western Union Telegraph Company will receive messages for all stations in the United States, East of the Mississippi Eiver, to be sent during the night at one-half the usual rates, on condition that the company shall not be liable for errors or delays in the transmission or delivery, or for the non-delivery of such message, from whatever cause occurring, and shall only be bound in such cases to return the amount paid by the sender. No claim for refunding will be allowed, unless presented in writing within twenty days.”
The regulation in question did not relate to or affect the mode in which or the terms upon which the ordinary business of the defendants was conducted, nor could it affect in any way the' right of parties who chose to pay the full rates, and transmit messages by day in the ordinary manner. Messages transmitted by day paid full rates, and were subject to certain specified conditions.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Willard, A. J.
The admission made by the operator employed by the defendants in transcribing and delivering the message in question was clearly inadmissible as evidence. It does not appear that such admission was made concurrently with, and so as to form part of, any act performed by the agent in the course of his agency ; but, on the contrary, that they were independent statements, not called for by the nature of his duties, and made several days after that was completed which constituted the alleged wrong on which the case rests. Statements of this character are entitled to no priv[370]*370ilege, but are to be considered as hearsay merely. It would follow that a new trial would have to result on this ground of error alone.
The propositions on which the defendants rely are that the plaintiff has no right of action, inasmuch as he was merely the receiver of a message sent by another, who employed the defendants and paid the consideration for the performance of such service; and that, by the terms of the contract, under which the service was performed, the defendants are exempt from liability for any damage that may have resulted from an error in transcribing and delivering the message sent.
The plaintiff is a privy to the contract under which the service was performed, and has a right to demand due performance. The contract in question is one of a peculiar class, as affecting questions of liability and privity arising under it. It is a contract with one exercising a public employment under express statute powers created for that purpose. The nature of the occupation of that class of persons, and the tender of their services to the community, makes them common agents for the transmission of messages for all persons who may desire and pay for such service, to any person, either as the final receiver of such message or as a means or agent for its further transmission. The object of the contract is to modify and limit the contract which, by operation of law, would arise between the common carrier of messages and any person employing such carrier, in the absence of any stipulation of terms between them. The foundation of the contract is the nature of the carrier’s occupation and the fact of employment. The legal consequences flowing from such employment are what the special contract seeks to modify or limit. Every such contract implies a sender of a message, a receiver, and an agent of transmission. The nature of the contract is, in this respect, the same, whether the rights and duties of the respective parties are defined by operation of law, or by express stipulations between themselves. It would, therefore, follow that the question whether the receiver of the message is a privy should receive the same solution, whether the contract is the result of the operation of law or of special terms of agreement between the parties.
The simplest form, then, under which the question of the privity of the plaintiff can be examined, is upon the assumption that a third person had delivered a message to the defendants for transmission to the plaintiff, in the delivery of which the plaintiff had a [371]*371pecuniary interest, and without the stipulation of any terms of transmission. In the case supposed would not the receiver accepting such service be bound to pay for it, and be entitled to demand due performance on the part of the carrier ? Clearly he would.
The fact that the receiver had not directly conferred with the carrier as to the duty to be performed would be unimportant. The carrier who undertakes to carry for all dispenses with the necessity of knowing and dealing directly or personally with his employer. His offers of service are intended to meet the requirements of all cases where a message, in ordinary course, is to be transmitted. Such cases embrace those in which the message is transmitted for the benefit of the sender, those in which it is for the benefit of the receiver, and those in which it is for the mutual benefit of both sender and receiver. Construing his contract by the nature of the service to be performed, it is clear that the party for whose benefit the service is to be performed is to be regarded as considered and included in the obligation resulting from the fact of employment, whether that person stands to it in the relation of sender or receiver. If such is the conclusion where the compensation for the service is not paid until the service is performed, it cannot be altered by the fact that the service is paid for in advance, nor by the consideration as to which one of the parties inclhded paid it. The time when a -consideration is paid, and the perso*n by whom paid, are not essential* elements of the question, the parties to the obligation being clearly f known by the objects intended by the contract.
It is equally clear that any stipulation of an express nature, intended to mould and limit the obligation, must be considered as attaching to the obligation in its fullest extent, and affecting equally all the persons related to it, either as sender, receiver or agent of transmission. Under this view of the contract the plaintiff is entitled to enforce its provisions as a direct party in interest.—Godwyn vs. Douglass, Chev., 174.
The regulation of the defendants, in conformity with which the terms of the contract limiting their liability was made, was a reasonable regulation, and such as the, defendants were authorized to make. In examining the proposition just stated, it must be borne in mind that the analogy between common carriers of goods and common carriers of messages is not perfect. The nature of the services performed differs materially in the two cases, and the real responsibility differs in a corresponding manner. The difference is [372]*372obvious, and has been frequently commented upon.—Ellis vs. Tel. Co., 13 Allen, (Mass.,) 226. In this respect the refusal to charge that such a difference existed is open to the objection of leaving the opposite proposition, namely, that the responsibilities in the two cases are identical upon the minds of the jury as the law of the case.
In pursuance of the regulation in question certain conditions were printed upon the blanks, on which the sender of a message was required to write the message for transmission, and were so connected with the message, by language importing acceptance by the sender of the terms of such' conditions, that the whole formed together a contract of which the conditions formed part.
The conditions were as follows :
“No. 45.
“half-rate messages.
“ The Western Union Telegraph Company will receive messages for all stations in the United States, East of the Mississippi Eiver, to be sent during the night at one-half the usual rates, on condition that the company shall not be liable for errors or delays in the transmission or delivery, or for the non-delivery of such message, from whatever cause occurring, and shall only be bound in such cases to return the amount paid by the sender. No claim for refunding will be allowed, unless presented in writing within twenty days.”
The regulation in question did not relate to or affect the mode in which or the terms upon which the ordinary business of the defendants was conducted, nor could it affect in any way the' right of parties who chose to pay the full rates, and transmit messages by day in the ordinary manner. Messages transmitted by day paid full rates, and were subject to certain specified conditions. The validity of the regulations relating to the transmission of day messages is not questioned in the present case. ]We must assume that had the sender of the present message sent it by day, he would, upon the payment of the ordinary or full rates, have been entitled to hold the defendants to the full measure of their legal responsibilities!! The defendants were not bound to transmit messages during the night time. Had the validity of a regulation declaring that no messages should be transmitted during the night time been in question, it would be impossible to find ground for holding such a regulation unreasonable. There is no analogy among the rules, applicable to [373]*373persons exercising the class of employments to which the occupation of the defendants belongs, that would support a conclusion that such a regulation was unreasonable. So there is no legal necessity compelling the defendants to tender terms and conditions on which messages may be transmitted at half rates. If, then, the parties chose to contract in special terms as to a special and voluntary service of that character, they were, at liberty to do so on any terms that might be agreed upon.
The general right of persons exercising this class of employments to vary their legal relations by special contracts is fully recognized, and cannot be questioned. The doubt that has affected cases of this class has arisen from attending circumstances, making it questionable whether the person entering, into such special contract with the carrier did so voluntarily or by compulsion, arising out of the nature of the carrier’s business. In view of the possibility of abuse of such powers it has been seriously questioned whether the power of demanding concessions from persons dealing with them in their business is within the legal powers of a common carrier. These questions have been complicated by the fact that the most important class of common carriers consists of corporations created for the express purpose of carrying on such business, and whose powers are such only as can be .gathered from a fair and reasonable construction of the terms of the laws under which they exercise corporate rights. No principles have been recognized and applied to these various eases that would call in question the right of a common carrier to contract in specikl terms for a special service, out of the course of his ordinary duty, with a person who was at full liberty to deal with such carrier according to his customary terms of dealing.
In McAndrew vs. Tel. Co.[ (33 Eng. L. and E., 180,) the right of a telegraph company, having express statute authority to make reasonable rules and regulations, ’ to affix different rates for transmission according to the degree of risk involved, was affirmed, on the principle that a regulation tending to conform their rates of charge to the responsibilities assumed was in itself reasonable. The conditions in this case provided for an increased rate for repeated messages, and that they should not be responsible for mistakes in unrepeated messages. They alsq limited the liability of the company in all cases to a maximum sum, unless insured by an additional payment. There is no difference, in principle, between a [374]*374regulation increasing the ordinary rate of charge where certain defined responsibilities are to be assumed, and a regulation diminishing the ordinary charge upon condition of being relieved of certain responsibilities. The two cases are the same as to the bearing of the present question. The conditions in the case just cited did not apply merely to a special service out of the ordinary course, like that of transmission by night, but to all business transacted in the ordinary course. Had that characteristic been presented, additional reasons would have appeared supporting the view of the Court.
Ellis vs. Tel. Co., (13 Allen, Mass., 226,) holds the same view as . that taken in the last mentioned case. In Massachusetts, it would | appear, the responsibilities of telegraph companies are regulated by |the statutes, and not by the common law.. It would be easier to ¡establish the proposition in question under the rules of the common law, than in view of the Massachusetts statute, as given in that case. The right to establish a different degree of responsibility in the case of repeated and unrepeated messages, attended by a different rate of charge, is fully recognized.
True vs. Tel. Co., (60 Maine, 9,) was a case of night messages arising under the following conditions: “That the company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any message beyond the amount received by the company for sending the same.” The message in that case was not delivered, in consequence of the negligence of the company’s agent. The question of liability under the terms of the contract does not appear to have been discussed, but assumed by the parties. The Court considered the question of the reasonableness of the conditions for the purposes of settling the question of the rule of damages, from the standpoint of construing the contract as “ a general and unlimited exemption from all and any liability beyond the sum paid,” including all cases of neglect, want of care or attention, of which the company could be guilty — “ even gross negligence, and the want of the lowest degree of care.” If this is a sound construction of the contract, then clearly a regulation imposing such terms of contract upon all persons dealing with the company was an unreasonable regulation.
According to this construction the company reserved the right to perform or not perform, to perform well or badly, upon the sole condition that the price of transmission must be returned unless the service was properly performed. It is difficult to see how such a [375]*375construction could be arrived at, if that contract was subject to the general rule that contracts must be construed by the nature of the ends in view and the means contemplated for their attainment. The construction placed upon that contract does not appear to have resulted from any necessity growing out of the language of the contract. The object of the contract was a benefit to be derived by the sender through the performance of certain acts on the part of the carrier, compensated by a pecuniary consideration paid in advance by the sender. The language of the contract must be construed so as to effectuate and not defeat this object. If the contract bound the carrier to no exercise of good faith towards the sender, it is in no sense a contract, for nothing is a contract but that which is capable of creating a legal obligation, and when such obligation exists good faith is necessarily implied.
The contract cannot be regarded as in its nature determinable at the will of the' carrier upon the condition solely of the repayment of the consideration money. By its clear terms the limitation of the sum that expresses the liability of the carrier is of such a nature as to import an agreed measure of damages applicable to a case of failure to perform properly. There is no language used importing that the repayment of the consideration should be regarded as a complete performance of the contract, nor is provision made for what would be essential in a contract determinable at the will of one of the parties, namely, an expression of that will properly notified to the opposite .party. Again, the limitations as to damages applies itself to both the case of an improper performance and one of non-performance, showing that it was intended as strictly a limitation of damages as upon a breach of the duty imposed by it. Inasmuch, then, as it is now allowable to construe the language of a contract in such manner as to separate the obligation created by it from that which is necessarily to be implied from the nature of such obligation, and as good faith is implied in every obligation, it follows that the contract should have been construed in such manner that its provisions should leave unimpaired the obligation to exercise good faith, necessarily implied in the nature of the contract itself. It is, therefore, necessary, in order to perpetuate the life of the contract, to hold that a case of w'ant of good faith is not within the terms of the contract, and that limitation of damages is not intended to apply to such a case, but must be restricted to the cases of non-performance or of improper performance, within the mind [376]*376and intention of the parties at the time of making the contract. Should this prove to be the true construction of the contract, the positions assumed as depending on the construction of the contract in the case of True vs. Tel. Co., would not conflict with those assumed in-the proposition under immediate discussion. Sweetland vs. Tel. Co., (27 Iowa, 433,) while holding common carriers of messages to as rigid a responsibility as that enforced by True vs. Tel. Co., arrives at its conclusions by reasoning of an opposite character to that in True vs. Tel. Co. It holds the regulation, which was the same, in substance and effect, as in True vs. Tel. Co., reasonable, but puts a construction on the terms of the contract that excludes from the exemption clause all cases in which a want of due care and skill, either on the part of the carrier or his servants, has produced damage. In other words, it only allows the |exempting and limiting clauses to extend to cases -where, by reason v of unavoidable accident or mistake, damage has occurred. It is difficult to see how this construction can be reached without disturbing the clear sense of the terms used by the parties. It is impossible to say that a contract would be without legal life and. force where the parties had agreed that no damage should be claimed where such 'damage resulted from want of skill and care upon the part of the servants of the contracting party, providing such contracting party remained bound to use his best endeavors, in good faith, to secure an effective performance of the contract; nor would the contract be void, if known or confessed want of general carefulness and skill, on the part of one attempting to perform an act, should be recognized to the extent of requiring the party seeking the performance of the act to run the risk of mistakes occurring from either of these causes. In an agreement to perform an act by a person known to be unskillful, or in an unusual manner, or at an unusual time, such a clause would not appear to be inappropriate.
An agreement to perform an act implies, reasonably, that ordinary care and skill shall be exercised in its performance, but it is not a necessary implication, or one that is inseparable from the obligation, considering its nature. In order, then, to narrow the terms of the contract so far, within their primary sense, as was done in Sweetland vs. Tel. Co., we cannot affirm that such a construction is a necessity, in order to save thé life and efficiency of the contract. Nor does any other good ground for so narrow a construction appear. If, as undoubtedly is the case, a telegraph company can contract in [377]*377such a way as to be rendered liable in case of a damage resulting from' the want of care and skill on the part of its servants, then it is very clear that they did so in the case under consideration. If, on the other hand, they cannot create a valid obligation without necessarily binding themselves to the exercise of good faith, then their contract should receive such construction as would be necessary to save it from becoming a nullity. Theoretical views of what would be the soundest policy in the relations between a telegraph company and the individuals of the community • are an unsafe guide in expounding the terms in which a particular individual has chosen to contract with such company. Legislation may possibly reach the proper adjustment, but in the end it will be effected in accordance with the interest of the parties and the convenience of the community, through the operation of natural causes, acting directly in the interest of the parties.
In Rittenhouse vs. Tel. Co., (44 N. Y., 263,) the grounds upon which that part of the decision of the Court rests that related to the question of general liability, are not sufficiently stated to disclose the principles on which it depends. ’
The weight of authority clearly supports the view already taken, that the regulation of the defendants, under which the contract was made, was, in its nature, a reasonable regulation, and the contract based upon it must be upheld according to the intent and meaning of its terms.
The principles that haveffieen discussed have a restricted application to the present case, which -will be stated. At the close of the plaintiff’s case there was no testimony that was of sufficient legal force to authorize a verdict. Whatever should have been the character of the negligence established by the plaintiff’s proofs, in order to warrant a verdict in his behalf, there was a failure of proof. The admissions of the operator being disregarded, the fact of an error in transcribing the telegraphic characters, and the consequent delivery of the erroneous message, is all that appeared to charge the defendants with a breach of their contract. The mere fact of the existence of an error in the message, as delivered, is not sufficient proof of negligence, as it may be reasonably referred to some cause within the terms' of the exemption contained in the contract.—Sweetland vs. Tel. Co., 27 Iowa, 433.
Subsequently, however, to the refusal of the Court to grant the motion for a non-suit the testimony of the operator was introduced, [378]*378to the effect that he “ was new to. the business — did not have much experience at that time.” This testimony afforded some degree of evidence of unskillfulness, sufficient, at all events, to prevent a non-suit from being entered at the present time, though we are not called upon to determine its force for want of an exception directed to that point.
There was error in the refusal to charge. The first refusal has already been noticed. The second request to charge should have been allowed, as already has appeared. The third request narrows down the liability of the defendants to a case of fraud or gross negligence, and presents too limited a view of the defendants’ re- | sponsibility. It is not essential that the act of negligence should be j of the character to which the very indefinite term “ gross ” is í usually applied, if it spring from disregard or indifference to what j was due to the plaintiff. The fourth refusal to charge has no sufificient basis in the evidence, as there is nothing tending to show that the plaintiff has acted otherwise than carefully and prudently. The fifth request is based on the idea that the acceptance of the contract tendered by Middleton & Co. was not binding, as there was a mistake as to the terms of contract offered. If Middleton & Co. incurred obligations on the strength of the message of acceptance, there is no reason for throwing upon them the consequences of plaintiff’s misfortune, whether arising from defendants’ wrong or otherwise.
It is apparent that there should be a new trial ordered.
Moses, C. J., and Wright, A. J., concurred.