Western Union Telegraph Company v. Blanchard.

It appears from the evidence in this case that the plaintiffs below delivered to the telegraph company at Columbus (the defendant) a message to be transmitted and delivered to Waldron & Tainter, factors and commission merchants, engaged in the buying and selling of cotton in the city of New York. That in said message, as, delivered by plaintiffs to the company, the said factors were instructed to "cover two hundred September and one hundred August." But the message received by the factors was to "cover two hundred September and two hundred August.”

The message as received in New York by the factors according to universal commercial usage among cotton men, meant the plaintiffs. desired their factors to sell on their account two hundred bales of cotton to be delivered in August, and two hundred bales to be delivered in September. Whereas, the message as delivered for transmission to the company at Columbus meant for the factors to sell two hundred bales to be delivered in September and one hundred to be delivered in August on account of plaintiffs. The evidence further shows that the words used in the telegram are terms of trade in ordinary use, and having the same import universally in trade. They meant a direction to sell, and implied that the plaintiffs were long of cotton to be delivered to them at such times.

In transmitting the message it further appears that the message passed as delivered correctly over the wires from Columbus to Washington city. That at that point it was received in the words as written and delivered in Columbus, but that at Washington city the telegram was changed, the word "two" was substituted by the operator for the word "one" in the August delivery. Austin, a witness for the defendant and the telegraph operator at Washington city who transmitted the message to New York, says: "If the printed copy at New York differs from the manuscript copy handled by me at Washington, the presumption is the error was made by me, as being received upon the printing instrument at New York, it is bound to record exactly as transmitted, though I am unable to explain it, save by the operation of unconscious mental action."

It is clear then, the error was not the result of any "atmospheric agency," but inattention and negligence in the operator at Washington, which he, in mild terms, calls "the operation of unconscious mental action." And it is against the operation of this unconscious mental action, that the law gives redress when loss results therefrom.

Western Union Telegraph Company v. Blanchard.

That the damage claimed resulted to the plaintiffs by reason of this error is fully sustained by the proof, and not controverted; though plaintiffs diligently sought by telegrams to rectify the error and guard against its consequences as soon as discovered, but without avail.

The fact of negligence against the company and loss to the plaintiffs being thus established by the evidence, was the law of the case correctly submitted to the jury by the court, or were the defenses set up by the defendant under the rules and regulations established by the company in the transmission of messages such as would, under the law and evidence, protect them from liability? 1, 2, 3. In the case of the Western Union Telegraph Company v. Fontaine, 58 Ga. 433, this court held: "Where a message is delivered to a telegraph company, it occupies the legal status of a bailee for hire, and not that of a common carrier, and if such message be not sent as directed, such company is liable for the damages resulting therefrom, unless it shows that the diligence necessary and appropriate to that peculiar business has been exercised." It was also held that, "An agreement that the company shall not be liable for errors or delays in the transmission or delivery or for non-delivery of such messages, from whatever cause occurring, shall not relieve it from liability from the damages resulting from its failure to transmit a message by reason of its own gross negligence. Such a contract the law does not recognize." Chief Justice WARNER, in pronouncing the opinion of the court, said: "When a person either natural or artificial undertakes any employment, trust or duty, such person contracts with those who employ or intrust him or it to perform the employment, trust or duty with that integrity, diligence and skill which belongs or appertains to that particular employment, and if by the want of either of these qualities any injury occurs to those who employ him or it for reward, an action on the case may be maintained therefor." He places the liability of the company on the ground that he is a bailee for hire, and though they are not insurers against loss or damage to the thing bailed, they are required to exercise care and diligence in protecting or keeping safely the thing bailed."

Here the plaintiffs proved that the message that he intrusted to be transmitted and delivered was not in fact delivered, but an altered and changed message which resulted in loss to the plaintiffs; and after such proof under the law, "the burden was on the bailee

Western Union Telegraph Company v. Blanchard.

to show proper diligence." Code, § 2064. And when he undertook to do this, its own agent, employee and witness shows the error was his own, and the result "of the operation of unconscious mental action."

In the same case, Judge BLECKLEY, while not concurring that the liability of the company was that of a bailee for hire, still held that the company could not stipulate against liability for its own gross negligence. "In no business carried on for reward can that

be done."

Judge JACKSON concurring, "was inclined to think that the business of a telegraph company is very similar to that of a common carrier," and approximates very nearly to that business, and his reasoning upon the proposition is cogent and difficult to answer, if not conclusive.

In looking into the charge of the court, he clearly has submitted the rule of liability as thus recognized and established by this court, and we think the charge was pertinent, clear and applicable to the facts of the case.

It is insisted however by way of defense, that as the plaintiffs made no request or payment to have the message sent "repeated, and as under the evidence and rules of the company absolute accuracy in the transmission of messages can only be secured by "repeating" them, the plaintiffs were notified by the printed rules of this necessity, hence defendants are not liable, since they did not repeat the message. We can only say, that any rule or regulation of the company which seeks to relieve it from performing its duty belonging to the employment with integrity, skill and diligence, contravenes public policy as well as the law, and under it the party at fault cannot seek refuge. If it become necessary for the company in transmitting messages with integrity, skill and diligence, to secure accuracy, to have said messages repeated, then the law devolves upon them that duty, to meet its requirements. We know of no law in this State that limits their tolls on messages; this is under their own control. A message must be transmitted with integrity, skill and diligence, and the mode of attaining accuracy in such work they have at their command-the compensation paid therefor the law does not seek to limit or restrict. 28 Ga 543; 58 id. 433; 34 id. 215; 1 Daly Tel. Cases, 288; 29 Md. 222; 27 Iowa, 432; 60 Me. 530.

In the case in 27 Iowa, 432, the court, on full review of the au

Western Union Telegraph Company v. Blanchard.

thorities, held, "that a telegraph company cannot by any rule or regulation it may make relieve itself from mistakes caused by the want of ordinary care. Hence they would be liable for ordinary as well as gross neglect." In the request to charge made by plaintiff in error, the refusal of which is complained of in the first and second grounds of the motion, the charge asked for, by implication at least, seeks a protection for the company under its rules and regulations, which is not sanctioned by law.

Neither do we think the company, by any rule or regulation of its own, can protect itself against every degree of negligence, except "gross negligence or fraud," as is claimed in the written request to charge, and assigned as error for the refusal thereof, in the third ground of the motion. Nor is the effort to fix by rule or regulation the amount of damages the company may be liable for in harmony with the law, where liability is incurred. 60 Me. 530. Το say the company shall only be liable for the amount of tolls paid out, is practically to excuse them altogether.

[Omitting minor point.]

As to the fifth ground in the request to charge, we do not see but what the message sought to be transmitted was, according to the proof, an ordinary commercial message, intelligible to those engaged in cotton dealing; and we can see no such special purpose intended by the sender, which was unknown to the company, as to vary the rule of liability. There was at least enough known to show it was a commercial message of value attached to the message, and that is sufficient. 55 Penn. St. 262; Tel. Cases, 256; 1 Daly, 474; 44 N. Y. 263; Tel. Cases, 570; 41 N. Y. 544; 45 id. 744; 44 id. 263; Tel. Cases, 613. Moreover the same obscure word "cover here used seems to have been known to defendant in the case in 58 Ga. 433, against the same company, when no such defense was then set up as to its being obscure.

[Minor point omitted.]

In looking through the other grounds of the motion, we see no such error as, in our opinion, calls for a reversal of the judgment. Judgment affirmed.

NOTE BY THE REPORTER.—It is the duty of telegraph companies to transmit messages with reasonable diligence and in the order of time in which they are received. Mackay ▼. West. Union, 16 Nev. 222; Breese v. U. S. Telegraph Company, 48 N. Y. 132; 8 Am. Rep. 526, 532, note.

It cannot be expected that a message left for transmission with a telegraph company

Western Union Telegraph Company v. Blanchard.

at a small station shall be forwarded and delivered at its destination as quickly as though it had originated at a large office. At a small station it is not the duty of the company to keep more than one operator, and if a message is left with a messenger during the operator's absence and the message was forwarded on the operator's return, after a reasonable absence, the company is not guilty of negligence. If the usual line of business between the two points is through a repeating office, the company is entitled to a reasonable time for the delay on account of other business at such repeating office. Behm v. West. Union, etc., 8 Biss. 131.

Upon payment or tender of its usual charges, a telegraph company is bound by law to transmit any message couched in decent language, which is placed in the hands of its agent for that purpose, though it may refuse to transmit one couched in indecent terms. West. Union Tel. Co. v. Ferguson, 57 Ind. 495.

The law requires a telegraph company to make, to say the least, an ordinary and reasonable effort to ascertain where the persons are to whom the message is sent, and a reasonable effort to deliver the message. An instruction that the company is required to deliver such message only at the office of the person addressed, is therefore erroneous; it being in that respect a limitation upon its duty. Pope v. West. Union, 9 Bradw. (Ill.) 283.

Are not common carriers. By the current of the American authorities telegraph companies are not regarded as common carriers. It was so held in Tyler v. West. Union, etc., 60 Ill. 421; s. c., 14 Am. Rep. 38, 53, note; Berry v. N. Y., etc., 18 Md. 341; Grinnell v. W. U., etc., 113 Mass. 299; 18 Am. Rep. 485; Ellis v. Tel. Co., 13 Allen, 226, cited in 8 Am. Rep. 532, note; West. Union, etc., v Carew, 15 Mich. 532; Schwartz v. Atlantic, etc., 18 Hun, 157; Leonard v. U. S. Tel. Co.. 41 N. Y. 544; s. c., 1 Am. Rep. 446, 460, note; Breese v. U. S. Tel. Co. 48 N. Y. 132; 8 Am. Rep. 526, 532, note; Pinckney v. Tel. Co., 19 S C. 71. But see in Canada; Baxter v. Dominion Tel. Co., 37 Upper Can., Q. B. 470; Bell v. Dominion, 3 Leg. News, 405.

In Pickney v. Tel. Co., 19 8. C. 71, it was held that such companies are not held to the liability imposed by law upon common carriers; but are to be governed by the law applicable to that class of bailments styled locatio operis faciendi; and the court said: There are three classes of cases in which the law has settled the principle, independent of the stipulations in the contract, to govern when alleged injuries have been received by one at the hands of another. These are, first, bailments; second, duties undertaken by one claiming to be skilled in the matter which he undertakes, such as professional employments; and thirdly, common carriers. As to the two first, the principle is that reasonable and due care and skill, according to the nature and character of the work done or service rendered, is guaranteed, and, in case of injury to be exempt the defendant must show the presence of this care and skill, or which is the same thing, the absence of negligence and inexcusable carelessness. As to the latter, to-wit, common carriers, the more stringent principle is, that nothing but an act of God or irresistible force, expressed in the books as the public enemies, will exempt. Now in which of these classes shall telegraph companies be placed, or to which have they been regarded as belonging? It is true, the business in which these companies are engaged is quasi public, but there is a wide difference between them and common carriers, and the foundation upon which the very stringent doctrine of non-exemption, except for an uncontrollable cause, is imposed by the law upon common carriers is altogether wanting as to a telegraph company. There is no motive or opportunity for a telegraph company to make mistakes or commit errors. There is no inducement or possibility for such companies to appropriate any thing which may be intrusted to them, to their own benefit, at the sacrifice of their employer's interests. Their business is simply to transmit messages by the medium of that mysterious agent, electricity, which with increasing progress is now being made to contribute so wonderfully and so usefully to our wants. In the discharge of their duties the principal qualifications required are experience, practice, and good faith on the part of their agents and servants, but even with the best qualified employees much depends upon electric, atmospheric, and other subtle influences beyond the reach of experience and the utmost skill. While therefore there is reason for holding them responsible for the qualifications necessary for the proper performance of the work which they propose to do, as the first classes mentioned above are held, to-wit,