103 Mich. 361 | Mich. | 1894
Defendant has a telegraph office at Hand' station, on the Wabash Railroad, 13 miles from Detroit, and also at Dearborn, on the Michigan Central. The-distance between them is between three and four miles. At both places the office is one with that of the railway-company, and the operators are those employed by these-companies. Defendant has an arrangement with the companies, by which their operators at these stations do all, its business. It has no contract with the operators, and no control over them. The entire receipts of the defendant at Hand are about $3.50, and at Dearborn about $4, per month. The 'cost of a telegraph operator at either-place would be about $40.
Plaintiff resided at Hand station. His wife was taken, sick on the morning of August 36, 1890, and a physician, residing at Dearborn was summoned to attend her. She-
.The telegraph blank upon which the message was sent, and signed by the plaintiff, stated that it was taken by the company subject to the terms thereon printed. One of these terms reads as follows:
“ To guard against mistakes or delays, the sender of a. message should order it repeated; that is, telegraphed back to the originating office for comparison. For this,, one-half the regular rate is charged in addition."
It further provided that the company should not be liable for mistakes or delays in the transmission or delivery or for the non-delivery of any unrepeated message, whether
It was settled in this State by the case of Western Union Telegraph Co. v. Carew, 15 Mich. 525, that telegraph companies, in the absence of any provision of the statute, are not common carriers, and that the regulation stated above is reasonable, and binding upon the senders of messages, whether they had knowledge of its contents or not. This has been accepted as the law in this State for 27 years. The telegram, as written, used the word “forty,” as delivered, the word “ four.” The Legislature has not seen fit to change the liability of telegraph companies, as there 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. Telegraph Co., 13 Allen, 226; Grinnell v. Telegraph Co., 113 Mass. 299; Kiley v. Telegraph Co., 109 N. Y. 231; Redpath v. Telegraph Co., 112 Mass. 71; Clement v. Telegraph Co., 137 Id. 463; Telegraph Co. v. Hearne, 77 Tex. 83; Passmore v. Telegraph Co., 78 Penn. St. 238; Becker v. Telegraph Co., 11 Neb. 87; Wann v. Telegraph Co., 37 Mo. 472; Lassiter v. Telegraph Co., 89 N. C. 334; Telegraph Co. v. Gildersleve, 29 Md. 232; Hart v. Telegraph Co., 66 Cal. 579.
In Ellis v. Telegraph Co., the dispatch, as sent, read, “ Ten (10) men, one hundred twenty-five dollars.” As received, it read, “Ten (10) men, one hundred seventy-
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
“ 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
The court below and counsel appear to have recognized the rule as established in the Carew case, 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. Telegraph 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. The Carew case 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 Tyler v. Telegraph Co., 60 Ill. 421. He quotes the language of that decision, and says of it:
“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. (City Ct. N. Y.), 26 N. Y. Supp. 532; Beasley v. Telegraph Co., 39 Fed. Rep. 181, quoting'the Carew case-with approval.
The statute of California requires telegraph companies to “use great care and diligence in the transmission and-delivery of messages.” Civ. Code, § 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. Telegraph Co. v. Cook, 9 C. C. A. 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 the care and diligence exacted by the law under-which it operates.”
In Telegraph Co. v. Fenton, 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. Telegraph Co. 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. Telegraph Co., 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 defendants* office, written upon one of their blanks, containing their rules, conditions, and regulations as to their terms of transmitting messages.**
The italics are those of the decision.
Sprague v. Telegraph Co. is another case of the same character. The court say, at page 203:
In Bell v. Telegraph Co., 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 Telegraph Co. v. Graham, it does not clearly appear where the mistake occurred. The statement in the ojDinion is that “the message was not transmitted and delivered.” It may be inferred from this that the message was never placed in transit. While the language of this opinion sustains the text, it is significant that there was no stipulation, as in the case at bar, that the company should not be liable in the case of an unrepeated message. The notice simply stated that messages of importance ought to be repeated, and attempted to limit the liability, in the case of repeated messages, to 500 times the amount paid for sending them. In Ellis v. Telegraph Co., the language upon this point was obiter dicta, and so
This rule appears to be sanctioned in Fleischner v. Cable Co., 55 Fed. Rep. 738. The defendant in that case was clearly liable upon other grounds. It received an important message for transmission from Portland, Or., to Seattle. There was a competing line between these two points. The line of the defendant was down, and had been for more than an hour previous to the receipt of the message. The defendant did not know where it was down, nor how long it would require to put it in order. It did not notify the sender that its line was down, nor make any attempt to send the message by the competing line. This was clearly a case of gross negligence, for which it, under all the authorities, would have been liable.
In Grinnell v. Telegraph Co., 113 Mass. 306, the language of Ellis v. Telegraph Co. upon this point was held to be obiter dicta, and was disapproved. The court in that case, replying to this contention, say:
“The conclusive answer to it is that the plaintiff, having omitted to fulfill the condition on which alone, by the terms of the express contract between the parties, he could recover for any mistake in transmission more than the amount of his original payment, cannot be permitted to prove that his own failure to fulfill his contract did not affect the result.”
The precise question was again before that court in Clement v. Telegraph Co., 137 Mass. 466, where the message had reached the receiving office, and been intrusted to a messenger boy for delivery. The language of the court is as follows:
“ The only negligence shown in this case was an unexplained delay in delivering the message on the part of the messenger boy, to whom it was, after its receipt, intrusted for delivery. It may be that the company might be guilty of some fraudulent or gross negligence in trans-,
This case is cited with approval in Primrose v. Telegraph Co., supra.
The question now before us is not one of neglect to transmit at all, nor of failure to deliver after receipt at the place of destination. It is a case of delay in transmission. It is obvious that such delays may occur from various causes. There is as much reason in stipulating against such delays as there is against inaccuracies in the message. The demand for its repetition is a notice of its importance and the necessity for promptness, additional to the language of the message itself. If the order to repeat had been contained in the message, we cannot say that the operator at Detroit, upon finding that he could not get the office at Dearborn, would not have at once telegraphed to the plaintiff that fact. However that may be, this delay was one against which he contracted, and against which, under the authorities above cited, the parties had the clear right to do so.
The defendant provided suitable instruments and competent operators. The failure of the temporary operator at Dearborn to connect his instrument with its line for a few hours is not “gross negligence,” within the definition adopted by this Court. Denman v. Johnston, 85 Mich. 387; Frost v. Railroad Co., 96 Id. 470. There was no intentiqnal wrong, and no act done to cause the delay, with knowledge of the plaintiff’s message. It appears that about one message, every two days, came to Dearborn.
The judgment must be reversed, and a new trial ordered.