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established; and, whatever might be the views of any of us if it were a new question, we are not disposed to overrule that case, which received the sanction of the three eminent jurists who decided it. The reasoning of that decision is substantially the same as that found in the decisions of many other courts, some of which are cited in the opinion. In addition to the cases there cited, we cite the following: Ellis v. American Tel. Co., 13 Allen, 226; Grinnell v. Western Union Tel. Co., 113 Mass. 299; 18 Am. Rep. 485; Kiley v. Western Union Tel. Co., 109 N. Y. 231; Redpath v. Western Union Tel. Co., 112 Mass. 71; 17 Am. Rep. 69; Clement v. Western Union Tel. Co., 137 Mass. 463; Western Union Tel. Co. v. Hearne, 77 Tex. 83; Passmore v. Western Union Tel. Co., 78 Pa. St. 238; Becker v. Western Union Tel. Co., 11 Neb. 87; 38 Am. Rep. 356; Wann v. Western Union Tel. Co., 37 Mo. 472; 90 Am. Dec. 395; Lassiter v. Western Union Tel. Co., 89 N. C. 334; United States Tel. Co. v. Gildersleve, 29 Md. 232; 96 Am. Dec. 519; Hart v. Western Union Tel. Co., 66 Cal. 579; 56 Am. Rep. 119.

In Ellis v. American Tel. Co., 13 Allen, 226, the dispatch, as sent, read, "Ten (10) men, one hundred twenty-five dollars." As received, it read, "Ten (10) men, one hundred seventy-five 865 (175) dollars." In Grinnell v. Western Union Tel. Co., 113 Mass. 299, 18 Am. Rep. 485, a material part of the message was omitted. In Kiley v. Western Union Tel. Co., 109 N. Y. 231, the message was never delivered. In Redpath v. Western Union Tel. Co., 112 Mass. 71, 17 Am. Rep. 69, the message was never delivered, but was sent to Oswego, instead of to Owego. In Clement v. Western Union Tel. Co., 137 Mass. 463, the message was not delivered until five days after its receipt. In Western Union Tel. Co. v. Hearne, 77 Tex. 83, the dispatch read: "Return note left by Hearne. Draw for $500." As delivered, it read: "Return note left by Hearne, order $500." The plaintiff in the court below recovered a verdict for twenty-five thousand dollars. In Passmore v. Western Union Tel. Co., 78 Pa. St. 238, the dispatch, as sent, read, "I hold the Tibbs tract for you." As received, it read, "I sold the Tibbs tract for you." In Becker v. Western Union Tel. Co., 11 Neb. 87, 38 Am. Rep. 356, the dispatch, as sent, read, "One fifty"; as received, "One sixty." In Wann v. Western Union Tel. Co., 37 Mo. 472, 90 Am. Dec. 395, the dispatch, as sent, read, "Ship by sail"; as received, "Ship by rail." A similar mistake occurred in Lassiter v. Western Union Tel. Co., 89 N. C. 334, which case has, however, been recently overruled by Brown v. Postal Tel. Co., 111 N. C. 187; 32 Am. St. Rep. 793. In

United States Tel. Co. v. Gildersleve, 29 Md. 232, 96 Am. Dec. 519, the dispatch was never delivered. In MacAndrew v. Telegraph Co., 17 Com. B. 3, the message directed a vessel to proceed to Hull. The message, when delivered, read "Southampton." In the above cases, this regulation was held reasonable, and the failure to order the message repeated a complete answer to the action. Several of the authorities above cited recognize the rule that any condition relieving telegraph companies from liability for gross negligence, willful misconduct, or fraud is void, as against public policy. This rule is also recognized in the following authorities: White v. Western Union Tel. Co., 5 McCrary, 103; Western Union Tel. Co. v. Howell, 38 Kan. 685; Western Union Tel. Co. v. Goodbar (Miss.), 7 South. Rep. 214.

The authorities are not uniform, and several authorities will be found to the contrary. The rule is criticised in Thompson on the Law of Electricity, chapter 8, where 366 the authorities will be found collated. We do not deem it important to cite them here. Some of them recognize the right of telegraph companies to establish reasonable rules and regulations for the conduct of their business. Some also recognize these regulations as valid, but strip them of their force by holding that they do not apply to nor relieve a telegraph company in case of negligence. Speaking for myself, I can see no object in the regulation, unless it be to relieve the company from certain negligent acts of its employés. If they be not common carriers-and this is almost universally admitted-then there is no liability, except in case of negligence. If delay in delivery, or failure to deliver, or mistake in the wording of messages, is attributable to storm, to accident, to sudden sickness of an operator or a messenger, or to any cause which does not of itself imply negligence, there can be no lability. What purpose, then, is there in, or what benefit is, such a regulation, if it still leaves open the question of negligence against them, where the sender does not choose to comply with the conditions to which he has agreed, and which will, in all probability, insure the delivery of his message as written? In commenting upon this class of cases, which hold that telegraph companies cannot stipulate against any negligence on the part of their employés, the supreme court of California says:

"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 367 telegraph companies to stipulate for the limitation of their liability for errors arising from any cause except willful misconduct or gross negligence": Hart v. Western Union Tel. Co., 66 Cal. 583; 56 Am. Rep. 119.

The court below and counsel appear to have recognized the rule as established in Western Union Tel. Co. v. Carew, 15 Mich. 525, for it was left to the jury to determine whether the defendant was guilty of gross negligence in the failure to deliver the message within the usual time. Such failure is certainly no more gross negligence than in the cases above cited, where the message was not delivered at all, and in others where the language was very materially changed and serious damage resulted. Negligence is the gist of these actions. It must be both alleged and proven. Some authorities hold that proof of the delivery of the message to the company by the sender, and of the failure to deliver, or of delay in delivery, or of its receipt, in language materially different from that in which it was sent, makes a prima facie case of negligence, and casts the burden of proof upon the company to explain. This may be the correct rule, since the facts are peculiarly within the knowledge of the company, but that question is not now involved, since the cause of the delay is conceded.

The highest judicial tribunal in this country, in the recent case of Primrose v. Western Union Tel. Co., 154 U. S. 1, has passed upon the precise question. The authorities are there cited and discussed in an exhaustive opinion by Mr. Justice Gray. Western Union Tel. Co. v. Carew, 15 Mich. 525, is cited, and its language quoted with approval. The regulation in that case is identical with the one in this, and it is sustained in its entirety. Mr. Justice Gray cites and discusses the decisions holding the regulation to be against public policy and void, among which is the case of Tyler v. Western Union Tel. Co., 60 Ill. 421; 14 Am. Rep. 38. He quotes the language of that decision, and says of it:

368 "The effect of that construction will be either to hold telegraph companies to be subject to the liability of common carriers, which the court admitted, in an earlier part of its opinion, that they were not, or else to allow to the stipulation no effect

whatever; for, if they were not common carriers, they would not, even if there were no express stipulation, be liable for unavoidable mistakes, due to causes over which they have no control. . . .

"The conclusion is irresistible that, if there was negligence on the part of any of the defendant's servants, a jury would not have been warranted in finding that it was more than ordinary negligence, and that, upon principle and authority, the mistake was one for which the plaintiff, not having had the message repeated according to the terms printed upon the back thereof, and forming part of his contract with the company, could not recover more than the sum which he had paid for sending the single message."

It is therefore clear that, in order to hold this regulation, which was a part of the contract, void, we must not only overrule the decision of our own court, but must run counter to the great weight of authority. We do not feel justified in doing this: See, also, Riley v. Telegraph Co., 26 N. Y. Supp. 532; Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181, quoting Western Union Tel. Co. v. Carew, 15 Mich. 525, with approval.

The statute of California requires telegraph companies to "use great care and diligence in the transmission and delivery of messages": Cal. Civ. Code, sec. 2162. The federal court in that state held that a company could not, by stipulation, relieve itself from the liability imposed by this express enactment": Western Union Tel. Co. v. Cook, 9 Co. Ct. App. 680; 61 Fed. Rep. 624. In its decision, the court say: "The nature of the employment is so peculiar, the risks attending it so extraordinary, that it is not unreasonable to uphold such stipulations, to the extent of limiting the liability of the company for losses not occasioned by its want of care and diligence exacted by the law under which it operates."

369 It is further argued by the learned counsel for the plaintiff that the repetition of the message would not have prevented the damage complained of, and that, therefore, the failure to have it repeated does not protect the defendant from liability. In the monographic note to Camp v. Western Union Tel. Co., 71 Am. Dec. 468, the following authorities are cited as supporting this contention: Western Union Tel. Co. v. Graham, 1 Col. 230; 9 Am. Rep. 136; Western Union Tel. Co. v. Fenton, 52 Ind. 1; Birney v. New York etc. Tel. Co., 18 Md. 341; 81 Am. Dec. 607; Ellis v. American Tel. Co., 13 Allen, 226; Baldwin v. United States Tel. Co., 54 Barb. 505; Sprague v. Western Union Tel Co., 6 Daly, 200; Bell v. Telegraph Co., 25 L. C. Jur. 248.

In Western Union Tel. Co. v. Fenton, 52 Ind. 1, the action was based entirely upon the statute of the state of Indiana, and not upon any contract between the parties. The court, in Birney v. New York etc. Tel. Co., 18 Md. 341, 81 Am. Dec. 607, based its holding entirely upon the fact that no effort whatever was made by the company or its agents to place the message upon its transit. The decision recognizes the validity of a regulation similar to that in the present case.

In Baldwin v. United States Tel. Co., 54 Barb. 505, the defendant was a connecting line, and received the message from the United States Branch Telegraph Company, to whom the plaintiffs had given it for transmission. The defendant set up its agreement with the other company, to which the plaintiffs were not parties. The court say, at page 516: "It is not necessary to discuss what would have been the rights of the parties, had the plaintiffs sent the message from the defendant's office, written upon one of their blanks, containing their rules, conditions, and regulations as to their terms of transmitting messages." italics are those of the decision.

The

Sprague v. Western Union Tel. Co., 6 Daly, 200, is another case of the same character. The court say, at page 203: 370 “This was not a mistake or delay in the transmission or delivery, or a nondelivery, but an entire breach, of the contract, by a neglect to send the message at all."

In Bell v. Telegraph Co., 25 L. C. Jur. 248, plaintiff telegraphed to one Machar, to which Machar immediately sent an answer by the defendant's line, which was never delivered. Stress appears to be laid in the opinion upon the fact that plaintiff was to be the recipient of the message, and was not a party, therefore, to the conditions of the message sent. The liability, however, was chiefly placed upon the law of the Dominion in relation to common carriers, which is quoted in the opinion as follows: "Notice by carriers of special conditions limiting their liability is binding only upon persons to whom it is made known; and notwithstanding such notice, and the knowledge thereof, carriers are liable, wherever it is proved that the damage is caused by their fault, or the fault of those for whom they are responsible." The principles of this law are then briefly applied "to the case in hand," and the defendant held liable.

It is apparent, we think, that these decisions do not sustain the text of the learned editor, and throw no light upon the present controversy. In Western Union Tel. Co. v. Graham, 1 Col. 230, 9 Am. Rep. 136, it does not clearly appear where the mistake occurred. The statement in the opinion is, that "the message

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