Ross, J.
Further consideration has convinced us that some of the views expressed when this case was considered in department should be modified, and the rulings in some respects changed. The case is this:
On the 15th day of December, 1882, the plaintiff delivered to the defendant, at its Stockton office, this message:
“ George W. McNear, San Francisco:
“ Buy bail barley falún; report by mail.
George Hart.”
The message was promptly transmitted and delivered as written, except that the word “ bail ” was changed to the word “ bain.” By the private cipher code of McNear, used by the plaintiff in the message, the word “ bail ” means “ 100 tons,” and the word “ bain ” means “ 225 tons.” As the message was-delivered, it directed McNear to buy for the account of the plaintiff 225 tons of barley; whereas as it was written by the plaintiff, McNear was directed to buy on plaintiff’s account 100 tons only. Acting on the message received, McNear bought for plaintiff 200 tons of barley. When the plaintiff discovered the fact, he notified the defendant that 100 tons had been bought in excess of that directed to be bought by the original message, and asked the defendant what he should do with the-surplus so purchased ? Defendant refused to give any instruction in regard to it. Plaintiff thereupon sold the barley at the highest market rate, his loss on the extra 100 tons being $429.-82. It is for the loss thus sustained by him, that the action is brought.
At the trial, the only proof given by the plaintiff to show negligence on the part of the defendant was the admitted fact that the message was delivered in its altered form. It was also admitted that the message was written by the plaintiff upon a printed form prepared by the defendant, underneath the words, “ send the following message, subject to the above terms, which are hereby agreed to,” and that among the “ above terms ” referred to are the following: “ To guard against mistakes or delays, the sender of a message should order it repeat[581]*581ed; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruptions in the working of its lines, or for errors in cipher, or obscure messages.”
That the message in question was not directed to be “repeated,” is conceded by the plaintiff; and, on the part of the appellant, it is contended that, as the message was not repeated, appellant is not responsible in damages beyond the amount received for its transmission; and this, because it is so declared in •the conditions printed at the head of the form upon which the dispatch was written, and to which, as is claimed, the plaintiff assented. In department, we held that telegraph companies are exempt only for errors arising from causes beyond their own control. In the first place, this rule would extend the liability of such companies beyond that declared by statute in this state. Originally, section 2162 of the Civil Code read: “ A carrier of messages for reward must use great care and diligence in the ■transmission and delivery of messages. A carrier by telegraph must use the utmost diligence therein ” ; and section 2168 of the same code originally read : “ Every one who offers to the public to carry persons, property or messages, is a common carrier of whatever he thus offers to carry.” But in 1874 these sections were amended and made to read as follows:
“ Sec. 2162. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages.”
“ Sec. 2168. Every one who offers to the public to carry persons, property or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”
By statute, therefore, a telegraph company in this state is not [582]*582a common carrier, and the degree of care and diligence exacted of such companies in the transmission and delivery of messages is “ great care and diligence.” If great care and diligence— which terms, of course, include the employment of proper instruments and competent operators—be exercised by the company, in the transmission and delivery of a message, the degree of care prescribed by the statute is complied with. In the next place, the effect of holding that telegraph companies are exempt only for errors arising from causes beyond their own control, would be to hold that such companies cannot by stipulation limit their liability to any extent; for since they are not common carriers or insurers, in no event would they be liable for errors arising from causes beyond their own control. With respect to such stipulations, the decisions of the courts are very conflicting-
In Illinois, Maine, and Wisconsin, it is held that there can be no consideration for such a stipulation on the part of the sender of the message, and that so far as he is concerned, it is void for that reason, although fully assented to by him. (Tyler v. Western U. T. Co., 60 Ill. 421; S. C., 74 Ill. 174 ; Candee v. W. U. T. Co., 34 Wis. 477; Bartlett v. W. U. T. Co., 62 Me. 218.) It is further held in these cases, that such a stipulation is contrary to public policy, and for that reason, also, is void. On the contrary, the cases are very numerous that hold that a stipulation providing that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company. (Grinnell v. Western U. T. Co., 113 Mass. 299 ; Western U. T. Co. v. Carew, 15 Mich. 525; Camp v. Western U. T. Co., 1 Met., Ky. 164; Breese v. U. S. Tel. Co., 48 N. Y. 132; Passmore v. Western U. T. Co., 78 Pa. St. 138; Lassiter v. Western U. T. Co., 89 N. C. 334, and numerous cases collected in the note to the [583]*583case of the Western U. Tel. Co. v. Blanchard, reported in 45 Am. Rep. 486.)
There is still another class of cases, of which Sweetland v. Illinois § Miss. Tel. Co., 27 Iowa, 433, is one, which maintain that such a stipulation should not he held to exonerate or release the company from damages caused by defective instruments, or a want of skill or ordinary care on the part of its operators.
Free access — add to your briefcase to read the full text and ask questions with AI
Ross, J.
Further consideration has convinced us that some of the views expressed when this case was considered in department should be modified, and the rulings in some respects changed. The case is this:
On the 15th day of December, 1882, the plaintiff delivered to the defendant, at its Stockton office, this message:
“ George W. McNear, San Francisco:
“ Buy bail barley falún; report by mail.
George Hart.”
The message was promptly transmitted and delivered as written, except that the word “ bail ” was changed to the word “ bain.” By the private cipher code of McNear, used by the plaintiff in the message, the word “ bail ” means “ 100 tons,” and the word “ bain ” means “ 225 tons.” As the message was-delivered, it directed McNear to buy for the account of the plaintiff 225 tons of barley; whereas as it was written by the plaintiff, McNear was directed to buy on plaintiff’s account 100 tons only. Acting on the message received, McNear bought for plaintiff 200 tons of barley. When the plaintiff discovered the fact, he notified the defendant that 100 tons had been bought in excess of that directed to be bought by the original message, and asked the defendant what he should do with the-surplus so purchased ? Defendant refused to give any instruction in regard to it. Plaintiff thereupon sold the barley at the highest market rate, his loss on the extra 100 tons being $429.-82. It is for the loss thus sustained by him, that the action is brought.
At the trial, the only proof given by the plaintiff to show negligence on the part of the defendant was the admitted fact that the message was delivered in its altered form. It was also admitted that the message was written by the plaintiff upon a printed form prepared by the defendant, underneath the words, “ send the following message, subject to the above terms, which are hereby agreed to,” and that among the “ above terms ” referred to are the following: “ To guard against mistakes or delays, the sender of a message should order it repeat[581]*581ed; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruptions in the working of its lines, or for errors in cipher, or obscure messages.”
That the message in question was not directed to be “repeated,” is conceded by the plaintiff; and, on the part of the appellant, it is contended that, as the message was not repeated, appellant is not responsible in damages beyond the amount received for its transmission; and this, because it is so declared in •the conditions printed at the head of the form upon which the dispatch was written, and to which, as is claimed, the plaintiff assented. In department, we held that telegraph companies are exempt only for errors arising from causes beyond their own control. In the first place, this rule would extend the liability of such companies beyond that declared by statute in this state. Originally, section 2162 of the Civil Code read: “ A carrier of messages for reward must use great care and diligence in the ■transmission and delivery of messages. A carrier by telegraph must use the utmost diligence therein ” ; and section 2168 of the same code originally read : “ Every one who offers to the public to carry persons, property or messages, is a common carrier of whatever he thus offers to carry.” But in 1874 these sections were amended and made to read as follows:
“ Sec. 2162. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages.”
“ Sec. 2168. Every one who offers to the public to carry persons, property or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”
By statute, therefore, a telegraph company in this state is not [582]*582a common carrier, and the degree of care and diligence exacted of such companies in the transmission and delivery of messages is “ great care and diligence.” If great care and diligence— which terms, of course, include the employment of proper instruments and competent operators—be exercised by the company, in the transmission and delivery of a message, the degree of care prescribed by the statute is complied with. In the next place, the effect of holding that telegraph companies are exempt only for errors arising from causes beyond their own control, would be to hold that such companies cannot by stipulation limit their liability to any extent; for since they are not common carriers or insurers, in no event would they be liable for errors arising from causes beyond their own control. With respect to such stipulations, the decisions of the courts are very conflicting-
In Illinois, Maine, and Wisconsin, it is held that there can be no consideration for such a stipulation on the part of the sender of the message, and that so far as he is concerned, it is void for that reason, although fully assented to by him. (Tyler v. Western U. T. Co., 60 Ill. 421; S. C., 74 Ill. 174 ; Candee v. W. U. T. Co., 34 Wis. 477; Bartlett v. W. U. T. Co., 62 Me. 218.) It is further held in these cases, that such a stipulation is contrary to public policy, and for that reason, also, is void. On the contrary, the cases are very numerous that hold that a stipulation providing that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company. (Grinnell v. Western U. T. Co., 113 Mass. 299 ; Western U. T. Co. v. Carew, 15 Mich. 525; Camp v. Western U. T. Co., 1 Met., Ky. 164; Breese v. U. S. Tel. Co., 48 N. Y. 132; Passmore v. Western U. T. Co., 78 Pa. St. 138; Lassiter v. Western U. T. Co., 89 N. C. 334, and numerous cases collected in the note to the [583]*583case of the Western U. Tel. Co. v. Blanchard, reported in 45 Am. Rep. 486.)
There is still another class of cases, of which Sweetland v. Illinois § Miss. Tel. Co., 27 Iowa, 433, is one, which maintain that such a stipulation should not he held to exonerate or release the company from damages caused by defective instruments, or a want of skill or ordinary care on the part of its operators. But as this latter class of cases concede that telegraph companies are not common carriers, their liability must rest on the ground of negligence or willful misconduct which is fraud. Fraudulent conduct on the part of the company would, of course, vitiate such a stipulation ; but to say that no stipulation can be made limiting their liability for negligence, is to say in effect that no stipulation can be made limiting their liability at all. It seems to us, therefore, that we must either hold, as did the courts in Illinois, Maine and Wisconsin, that such stipulations are invalid, because unsupported by a consideration, and contrary to public policy, or that it is competent for telegraph companies to stipulate for the limitation of their liability for errors arising from any cause except willful misconduct or gross negligence. As respects the question of consideration, it is enough to say that if the stipulation is one that can be made, it is a part of the contract, and is supported by the same consideration that supports the contract for the transmission and delivery of the message. With respect to the reasonableness of stipulations of the character of that under consideration, we find, upon careful examination, that, according to the weight of authority, a regulation that the liability of the company for any mistake or delay in the transmission or delivery of the message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated, by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to betaken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company; and we so hold. It would serve no useful purpose to state at length the reasons given by the various courts in support of this conclu[584]*584sion. It is sufficient to say, generally, that they are founded in the peculiar nature of the employment; the extraordinary risks attending it, against many of which human foresight cannot provide; in the fact that the thing—the message—with which the company is intrusted, is of no intrinsic value; that the importance of it cannot be estimated except by the sender; for the transmission of which there must be' a simple rate of compensation, and the measure of damages for a failure to transmit or deliver which has no relation to any value which can be put on the message itself.
The action of the court below, with respect to the instructions, was not in accord with these views. As the case must, therefore, be sent back for a new trial, it is proper that we should determine upon which party rests the burden of proof. But for the stipulation, the plaintiff having proved the mistake in the message as delivered, the onus would undoubtedly be upon the defendant to excuse its breach of the contract to transmit and deliver the message. But the contract having included a stipulation, to the effect that, unless repeated, the defendant should not be held liable for any mistake or delay in the transmission or delivery of the message, or for not delivering the same, beyond the sum received for sending it, unless the mistake, delay or failure arose from the willful misconduct or gross neglect of the defendant, the plaintiff’s right to recover more than the amount paid for sending the message (for which defendant in the present case, by its answer, offered to allow judgment) could not be established, except by proving willful misconduct or gross negligence on the part of the defendant.
Judgment and order reversed, and cause remanded for a new trial.
Myrick, J., Sharpstein, J., Morrison, C. J., and McKinstry, J., concurred.
Thornton, J., dissented.