Wann v. Western Union Telegraph Co.

37 Mo. 472

• Court: Supreme Court of Missouri
• Decided: March 15, 1866
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

This was an action instituted, to recover damages for alleged carelessness of the Western Union Telegraph Company in transmitting a dispatch for plaintiff from St. Louis to New York city. The dispatch, as sent by plaintiff to his correspondent in New York, ordered' them to. ship to him at St. Louis, certain quantities of salt by “ sail,” and when it reached New York and was delivered it read, ship by “ rail;” that is, the word “rail” was substituted for the word “sail” in the original dispatch. Accordingly a large proportion of the salt was forwarded by railroad instead of by canal and lake, as was originally intended.by the dispatch. The shipping by railroad was much more expensive than by water, and the actiou was brought to recover the difference between the two modes of transportation. A judgment was rendered in the court below, for the plaintiff, for the sum of one thousand and eighty-five dollars and forty-four cents, and to reverse this judgment the case is brought here by appeal.

The defendant resists the recovery on the ground that all dispatches were sent over its lines on the following conditions, which, it appears, plaintiff had knowledge of:

“ Terms and conditions on which messages are received bythe company for transmission, — The public are notified that, in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated,;: by being sent back from the station at which it is to be received to the station from which it is originally sent. Half the usual price for transmission will be charged for repeating the message; and, while this company will, as heretofore, use every precaution to insure correctness, it will not be responsible.for mistakes or delays in the-transmission or delivery of repeated messages beyond an amount exceeding five hundred times the amount paid for sending the message, nor will it be responsible for mistakes or delays in the trails-mission of unrepeated messages, from whatever cause they may arise, nor from delay arising from interruptions in the workings of its telegraphs, nor for any mistakes or omissions of any other company, over whose lines the message is to be sent to reach the place of its destination. All messages will hereafter be received by this company for transmission subject to the above conditions.” .

The message was not ordered to be repeated.

Our statute, under which the company is incorporated, declares that it shall be the duty of the company, “ on payment) or tender of the usual charge, according to the regulations of the company, to transmit all dispatches, with impartiality and good faith, in the order of time in which they are ceived,” &c. And such companies are made liable “for specialN damages occasioned by the failure or negligence of their operators or servants, in receiving, copying, transmitting delivering dispatches.” (R. C. 1855, p. 1521, §§ 5-6.) The court has never before been called on to construe this statute, and the transmitting and communicating intelligence by means of the electric telegraph being of comparatively recent invention, but few adjudications have been made in respect to the liabilities of telegraph companies. In California the court seems to have applied the doctrine governing] the liability of common carriers . to telegraph companies// *But in the California case, as well as the Maryland case to which reference has been-made, there was not merely negli-| gence, but an entire omission on the part of the operators]/* of the companies to perform their duties. In the former, the dispatch was not sent until the day after it.was received, consequence of which delay the plaintiff lost a debt; in the latter, the dispatch was forgotten, and was not sent at all. But the Maryland court repudiates the doctrine, that a telegraph company is a common carrier, and assumes that it is a bailee, and that a party sending messages by telegraph, knowing that the engagements of the company- are controlled by certain rules and regulations, engrafts them in contract of bailment, and is bound by them ; and that 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 ©r its agents to put a message on its transit.

In the Kentucky case, the telegraph company had published notice in the precise language used by the defendant here-' and copied in this opinion. The plaintiff sent a message over its lines without ordering it to be repeated, or paying for having tlie same done. A mistake occurred in its transmission, whereby he lost one hundred dollars. The court held that the condition was reasonable and the defendant was not liable. The case of McAndrew v. The Electric Telégraph Company Com. Bench, 3) is in point, and is ably reasoned. The statute 16 and 17 Victoria embodies a provision similar to ours in regard to telegraph companies, and the company there had given notice of which the one here is almost an identical transcript. The plaintiff delivered an unrepeated message to be transmitted over the company’s line, directing a certain ship to proceed to Hull. By mistake, when it was received, it directed the ship to proceed to Southampton. On account of this mistake the plaintiff was injured in disposing of his cargo, and brought his action to> recover damages; but the court said the condition was reason able, and there was no objection to the company availing itself of the same protection that other persons in a similar* position are entitled to do by law, by limiting its liability by fair and reasonable conditions, notice of which is duly brought home to the parties contracting with it.

Whether we regard telegraph coinpanies as common carriers or as bailees, we see no reason why they may not specially limit their liabilities, subject to the qualification, however, that they will not be protected from the consequences of gross negligence. * Deny them this right and they will be utterly unable to protect themselves against the hazards and risks which are incident to the business in which they are engaged. We see nothing unreasonable in their declaring they will not be responsible for unrepcated messages. W & think this description of liability comes within the intention of the regulations provided for in the statute. The system of telegj&phing, however perfect it may be, is seriously affected by atmospheric causes, which are uncontrollable ; and if a man wants to send a message of an important character, prudence and wisdom would seem to dictate that he should have it repeated, in order to be assured of its correct transmission. And as the repetition imposes additional labor, it is surely justice that an enhanced price should be paid. If the company undertake to insure the accuracy of the message, and assumes additional risk, it should be paid accordingly.

The message sent by the plaintiff was one of importance; lie eould have demonstrated its perfect correctness by having it repeated at a trifling sum, and he was fully cognizant of the regulations of the company.

The first, third, and fourth instructions prayed for by defendant should have been given, and the last paragraph of the instructions given for the plaintiff should have been refused.

The judgment is reversed, and the cause remanded.

Judge Holmes concurs; Judge Lovelace absent.