95 Mass. 226 | Mass. | 1866
These exceptions open an inquiry into the nature and extent of the duties and liabilities which are assumed
We are then to look into the provisions of the statute to ascertain how far they regulate and control the relative rights and liabilities of the parties to this suit. The only important clause bearing on the questions saved by the exceptions is found in the tenth section of the chapter of the General Statutes already cited. It is in these words : “ Every company shall receive despatches from and for other telegraph lines, companies and associations, and from and for any person; and, on payment of the usual charges for transmitting despatches according to the regulations of the company, shall transmit the same faithfully and impartially.” The leading feature in this enactment is, that it in effect takes the business of conducting and managing a line of electric telegraph within this commonwealth out of the class of ordinary private occupations, and makes it a quasi public employment, to be carried on with a view to the general benefit and for the accommodation of the community, and not merely for private emolument and advantage. Under this provision, an owner or manager of such a line becomes to
But the trust reposed in the owner or conductor of a line of telegraph is of a very different character. No property is committed to his hands. He has no opportunity to violate his trust by his own acts of embezzlement, or by his carelessness to suffer others by means of larceny or fraud to despoil his bailors of their property. Nor can it be at all times in the power of an operator, however careful or skilful he may be, to transmit with promptness or accuracy the messages committed to him. The unforeseen disarrangement of electrical apparatus; a breach in the line of communication at an intermediate point not immediately accessible, occasioned by accident or by wantonness or malice ; the imperfection necessarily incident to the transmission of signs or sounds by electricity, which sometimes renders it difficult if not impossible to distinguish between words of like sound or orthography, but different signification: these and other similar causes, the effect of which the highest degree of care could not prevent, make it impracticable to guard against errors and delays in sending messages to distant points. To these hindrances and embarrassments in the conduct and management of the business are to be added the mistakes and misapprehensions which will unavoidably take place, however vigilant and careful the operator may be, in reading and correctly understanding the messages to be sent and in interpreting them at the point of their reception, as they are transmitted by the arbitrary signs or sounds which are the substitute for the written or spoken words. It would be manifestly unreasonable and unjust to annex to a business of such a nature the liability of a common carrier, or to require that those engaged in it should assume the risk of loss and damage arising from causes, the operation of which they could neither prevent nor control.
But although they ought not to be held to such a standard of diligence, they are not exempt from all responsibility for a want of fidelity and care in the exercise of the employment which
Nor can there be any difficulty or danger in the application of this principle, so long as it is kept within a proper limit That limit is found by requiring in all cases that the conditions
But we need not have recourse to these familiar and well settled principles of the common law, in order to establish the right of the owners and conductors of telegraphs to make rules and regulations by which to define and limit their duties and obligations in the transaction of the business which they assume to carry on. This right is clearly recognized and affirmed by the statute already cited. By that, corporations, associations and individual owners of lines of telegraph, doing business within this commonwealth, are only required to transmit despatches “ according to the regulations ” which they may establish. It is hardly necessary to say that this provision does not confer the right to impose such conditions or restrictions in the mode of conducting the business as the self-interest or caprice of owners and conductors of telegraphs may dictate ; but only those which are reasonable and proper, in view of the nature of the business, and the risks and responsibilities which it involves, and the necessity of securing to the public due opportunities for a fair and reasonable use of the telegraph, as well as of affording due protection to the rights of those on whom are imposed the duty and burden of conducting the business for public accommodation. This is the true interpretation of the statute; any other construction would lead to the result that the legislature conferred a power to establish unreasonable regulations for the conduct of a business of a quasi public nature, a conclusion which is manifestly absurd.
We are then brought to the real question on which the decision of this case must depend; and that is, whether the rule on which the defendants relied in defence of the plaintiff’s claims is a just and reasonable one, such as they had a right to prescribe, and by which the plaintiff was bound in the reception of the message which they transmitted to him. Upon this point we can entertain no doubt. We are not called on in this case to
Nor can we see any good reason why, on similar grounds, it would not be a just and proper exercise of the right to establish regulations for the conduct of such business to require that persons transmitting or receiving messages should make known the extent and nature of the risk to be assumed by the conductor or owner of the telegraph, if, in case of failure to transmit them accurately, a pecuniary loss would be involved, for which he might be held liable. By no other means could they be certain of obtaining a compensation proportionate to the risk to be assumed, or an opportunity of exercising unusual diligence to protect themselves against the chances of mistake or miscarriage.
It is mainly for these reasons that we are of opinion that the instructions given to the jury at the trial of this case cannot be supported. The defendants were entitled to insist on a compliance with that part of their regulations which required that the message should be repeated, and that the extent of the risk should be made known to them, if they were to be held to insure the safe and correct transmission of the message, or, in case of failure, to be responsible for all the damages consequent on delays or errors. Of this regulation the plaintiff had notice. Although he entered into no express contract with the defendants, and cannot be held to have made any special stipulations with them by which he is bound, he did consent to receive at their hands a message which he alleges it was their duty to deliver to him. It is on this undertaking by the defendants, and for the breach of duty of which he alleges they are guilty, that he seeks to hold them in this action. It may, therefore, be a sufficient answer to such a claim, that, according to the reasonable regulations by which they were governed in the performance of their undertaking towards the plaintiff, and of which he
Besides; it is difficult to see how the plaintiff, who claims through the contract entered into by the sender of the message with the defendants, which created the duty and obligation resting on the defendants, can claim any higher or different degree of diligence than that which was stipulated for by the parties to the contract. Certainly a derivative or incidental right cannot be greater or more extensive than that which attached to the principal or source whence such right accrued or was derived.
It is hardly necessary to say that the question whether the mistake or error in the despatch would have been prevented or corrected by the repetition of the message, in conformity to the regulations established by the defendants, does not appear to have arisen at the trial. Whether it would have done so or not was a question of fact for the jury. Of course, the defendants would be liable for any negligence causing damage, which would not have been prevented by a compliance with these rules.
In the examination of this case we have not derived any great aid from the cases cited at the bar. The one on which the plaintiff mainly relied, New York & Washington Telegraph Co. v. Dryburg, 35 Penn. State R. 298, differs from this' in the essential particular that it was not proved that the defendant in error had any notice or knowledge of the regulations of the company, by which their liability was restricted. The best considered cases seem to be M’Andrew v. The Electric Telegraph, 33 Eng. Law & Eq. R. 180; Birney v. New York & Washington Telegraph Co. 18 Maryland, 341, and De Rutte v. New York, &c. Telegraph Co. 1 Daly, 547.
The result is, that the exceptions must be sustained, and a
New trial granted.