Pinckney Bros. v. W. U. Telegraph Co.

19 S.C. 71 | S.C. | 1883

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The plaintiffs, citizens of Charleston, sent a night message from that city over defendant’s wires to their agent in New York, directing him to purchase a •certain number of bales of cotton. The message was in cipher, and a mistake was made in its transmission, on account of which several hundred more bales were bought than plaintiffs ordered. Cotton fell in price, and the plaintiffs incurred a considerable loss. This action was brought to recover damages because of said loss. The message being a night message, and under the rules of the company not required to be repeated or to be sent as promptly as day messages, was transmitted at much lower rates, and also upon different conditions than those attending the latter, all of which was specified in a special contract, printed as a heading upon the paper, on which the message was written, of which the following is a copy:

“ Blank No. 45.

“THE WESTERN UNION TELEGRAPH CO.

“Half Rate Message.

“ The business of telegraphing is liable to errors and delays, arising from causes which cannot at all times be guarded against, including, sometimes, negligence of servants and agents whom it is necessary to employ. Most errors and delays may be prevented by repetition, for which during the day half price extra is charged in addition to full tariff rates. The Western Union Telegraph Company will receive messages, to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day, at one-half the usual, day rates, but in no case for less than twenty-five cents tolls for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays, or for non-delivery of such messages happening from any cause, beyond a sum equal to ten times the amount paid for transmission ; and that no claim for damages shall be valid unless presented in writing within thirty days after sending the message.

“ Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery, the sender hereby guaranteeing payment thereof.

“ The company will be responsible to the limit of its lines only, for messages destined beyond, but will act as the sender’s agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability.

“A. R. Brewer, Secretary.

“ Norvin Green, President.

“Send the following half rate message, subject to the above terms which are agreed to:

“ May 22d, 1880.

“ To F. Warley, 101 Pearl Street, N. Y. :

“ If failure hottentot humor if exactly idle humorist.

“ Pinckney Bros.

“ 1®“ Read notice and agreement at the top.”

The judge charged the jury that the stipulations in this contract in reference to absolute and unconditional exemption for errors and mistakes, were void as against public policy, and that notwithstanding these stipulations, the company was still liable ■ if the mistake occurred from either the fraud, malpractice or negligence of its agents, employes or servants.

We may say at this point that no exception in the “Case” questions the correctness of this ruling, and therefore it is not involved in the appeal, and, not being involved, we have not considered it. The questions before us come up from another portion of the charge, and upon these the appeal depends. In the portion of the charge alluded to, the judge instructed the jury that upon a prima facie case being made by the plaintiffs, (which would be so upon proof of the contract to send, of the consideration and of the breach,) that then to rebut this the burden was upon the defendants to show that the mistake did not occur through any carelessness or negligence on their part, or of their agents. He further instructed that the company was not bound to prove either how the mistake occurred, or that it did occur from some other cause than the negligence of its officers or servants. In substance, he charged that the company was not bound to explain how the mistake occurred, but was only required to show that it did not occur through the carelessness or negligence of its servants or officers, and that the onus of showing this was upon the defendants, as matter of defense.

The verdict was for the defendants. The plaintiffs have appealed upon several exceptions, assigning error. These exceptions, however, when analyzed and reduced, really raise but a single question, or rather, upon examination, it appears that the whole appeal turns but upon one question, which is this: A prima fade case having been made for the plaintiff by proof that the message had been received and transmitted by the company with a mistake in its terms, which resulted in loss to plaintiff, whether the company could be relieved from liability except by showing that the mistake occurred from some uncontrollable cause or causes, to which it could be attributed, the difference between the appellant and the presiding judge being that the judge charged that proof of due care, or the absence of negligence and carelessness on the part of the company, was good defense, while appellant contends that nothing short of an uncontrollable cause could relieve or exempt, the onus of showing this being upon the defendant.

We do not know that there can be any cause which, in the language of the exception, may be termed “uncontrollable,” except it be an act of God or irresistible force, and the question to be considered, therefore, is, whether telegraph companies are liable for all mistakes made in the transmission of messages, except such as occur from an act of God or irresistible force, the onus of showing which is upon them.

There are three classes of cases in which the law has settled the principle, independent of the stipulations in the contract, which is to govern where 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 medical treatment and other professional employment; 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, into 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 -yuas-i-public, but there is a wide difference between them and that of 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 anything which may be entrusted 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, skill and good faith on the part of their agents and servants, but even with the best qualified employes, much depends upon electric, atmospheric and •other subtle influences beyond the reach of experience and .of 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, professional employes .and bailees, yet there is no reason for holding them as insurers like common carriers. Common carriers transport goods, merchandise and other corporeal materials, which are constantly in their possession from the commencement of their trip until the •destination is reached, and it is entirely reasonable that they should guard and protect these goods against all dangers which can be warded off by human power. ■ But telegraph companies transmit ideas — intangible and fleeting things — which, when placed upon the wire, instantly escape from the hands of the operator, and in a moment — yea, in the twinkling of an eye — are hundreds and thousands miles away, far beyond the reach and control of him who started them upon their distant mission, passing through different parallels of latitude or degrees of longitude, as the case may be, with the rapidity of thought, but encountering for themselves all the dangers or obstacles that may be met by the way. To apply the rule of common carriers to these companies, would, it seems to us, be extremely unjust, and to hold them absolutely liable as insurers would greatly impair this mode of correspondence, crippling, if not destroying, a most important and growing department of business.

Such we do not understand to be the law as settled in England, or in a majority of the American States. It is true there is a lack of uniformity in the decisions, and in many cases where-the point has not been distinctly adjudged, will be found many loose and somewhat ill-defined expressions tending to the application of the stringent doctrine of common carriers, but the-current of authority is decidedly opposed to this. 2 Thonvp-Negl. 836, and the numerous cases cited in the note at that page. Cases from New York, Pennsylvania, Missouri, Maryland,. Michigan, Kentucky and other States. We concur in the doctrine indicated in these cases, and therefore think there was no error in the Circuit judge declining to rule as requested by the-appellant.

In many of the cases which have been before the courts, the-principal question has been whether these companies could exempt or limit their liability by special contract, either as to day or night messages. In this, the same want of uniformity exists. But this question is. not before us, and we have not felt called upon, therefore, to consider it.

We do not think that these companies are bound to explain how mistakes, like this complained of here, occurred. This, from the very nature of the subtle agent made use of, would in many cases be utterly impossible, at least at the present stage of' information upon that subject, and the law does not require impossibilities.

Our opinion is that telegraph companies, as to the work which they engage to do, belong to that department known as bailment, ■especially to that class styled locatio operis faoiendi, and that they are governed by the principles of law which have been long since established in reference to this department. We think the •charge of the judge was in accordance with these principles, and therefore this appeal cannot be sustained.

The exception as to the competency of one of the jurors ■cannot avail. If it had clearly appeared that the juror had formed a fixed and decided opinion, then he should have been excluded, but this was a matter about which the judge was peculiarly qualified to determine, and we cannot say that he erred in his judgment. As it appears to us, if the juror had any bias it was decidedly in favor of the plaintiffs, but he distinctly stated that no opinion formed by him in a previous case would have the least influence upon him in this. In a case like this we would not feel warranted in overruling the decision of the presiding judge, whether his decision was the one way or the other. It is our province to correct errors of law and not of fact, and this seems to be more a question of fact than of law.

The plaintiff’s cause of action, as appearing in the complaint, being outside of and independent of the contract between the parties, he cannot fall back upon that contract in this action. The complaint presents the only issue between the parties, and ■the case must stand or fall on that.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.