710
FEDERAL REPORTER.
dence of the facts recited. Upon this principle, it has been repeatedly declared that the grant of letters testamentary is in general prima facie evidence of the death of the testator or intestate. COIIIstock v. Crawford, 3 Wall. 396 j Belden v. Meeker, 47 N. Y. 307; Welch v. N. Y. O. R. Co. 53 N. Y. 610; Thompson v. Donaldson, 3 Esp. 63; JeJfers v. Radcliff, 10 N. H. 242. The factR elicited by the proof relative to Rockwell's disappearance are not sufficient to countervail the presumption thus established. A decree pursuant to the prayer of the bill is directed.
WRITE, WASHER
&
KING V. WESTERN UNION TELEGRAPH
Co.
(Circuit Oourt, D. Kansas. June Term, 1882.) 1. TELEGRAPH lUESSAGES-NEGLIGENT TRANSMISSION-LIABILITY.
In an action for damages for negligence in the transmission of a message by a telegraph company, whereby the sender of the message su:trered pecunian loss, the burden of proof rests upon tbe plaintiff to show that the error or mi;take occurred through the culpable carelessness and gross negligence of th!, operators or employes of the company; a simple mistake in transmitting a dispatch is not to render the company liable. 2. SAME-NATURAL CAUSES. Where the errors or mistakes in the transmission of the dispatch Occurred through climatic influences, such as storms, lightning, rain, or other natural causes, temporarily affecting the insulation of the wires, or the working of the instruments, the company is not responsible: as the mere fact that a mistake was made in the message transmitted would not itself authorize any recovery for more than nominal damages. 3. SAME-CONTRACT R¥;STRICTING LIABILITY. A contract written at the head of a telegraph diilpntch restricting the liability of the company for loss from mistake or negligence in the transmission or delivery of the dispatch, will not exonerate the company from loss or damage caused by the wanton carelessness or gross negligence of its servants, agents, or operators. 4. The highest degree of care is not required of telegraph companies in the mission messages over its lines; if ordinary care is exercised by its agents, employes, or operators, it is sufficient to exonerate them from liability for 10s6 or damage. 6. SAME-GROSS NEGLIGENCE.
Gross negligence is that want of care which a person habitually careless and negligent would exercise in business transactions.
This was an action to recover damages by reason of an alleged mistake in transmitting a dispatch over the lines of defendant's company. The dispatch was sent pursuant to certain regulations and conditions
WHITE
v.
WESTERN UNION TELEGRAPH 00.
711
as contained in the telegraph blank upon which the mesaage was written. The original dispatch, together with the printed form upon which the same was written, is as follows, to-wit: "The Western Union Telegraph Company. .All messages taken by this company subject to the following terms: To guard against mistakes or the sender of a mesl:lage 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 is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, orfor non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated message beyond fifty times the sum 'received for sending the same, unless specially insured j nor in any case for delay arising from unavoidable interruption in the working of its lines,or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender without liability to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk and payment of premium thereon at the following ratlls, in addition to the usual charge for repeated messages, viz.: 1 per cent. for any distance not exceeding 1,000 miles, and 2 per cent. for any greater distaMe. No employe of the company is authorized to vary the forep;oing. The company will not be liable for damages in any case where the claim is not presented in writing within 60 days after sending the message. 6-18-1879. Send the following message, subject to the above terms, which are agreed to: 'To McGinnity, .Adams & She-ny, St. Louis: Sell fifteen July wheat; sell rye fifty-two or more. 'WHITE, WASHER & KING.'
"Read the notice and agreement at the top."
The mistake in transmitting the dispatch was in substituting the words "fifty" July wheat for the words "fifteen" July wheat, as the message was originally written, and the plaintiff's brokers ha.ving sold 50,000 bushels of wheat for July delivery, a change in the market caused loss to the plaintiffs, who claimeA damages by reason of the error in transmitting the dispatch. Tomlinson Ii; Griffin and W. W. Guthrie, for plaintiffs. Everest Ii; Waggener, for defendant. FOSTER, D. J., (charging jury.) I desire to get before your minds the facts upon which you are to pass in arriving at a verdict from the evidence in this case. There has been a great deal of discussion about the law, and some discussion upon thl? evidence. I will first call your attention to the issues in this case, and the facts that are admitted and uncontroverted, and the facts remaining for you to pass
712
upon, by your verdict. It is not controverted in this case that the plaintiffs, White, Washer & King, in the month of June took to the Western Union Telegraph office, in Atchison, this dispatch for transmission to their agents at St. Louis, Missouri. It reads as follows; that is, the written part: "6-18-1879. To McGinnity, Adam,3 rf: Sherry, St. Louis: Sell fifteen July wheat; sell rye fifty-two or more." When the dispatch was received by the parties to whom it was transmitted, in the place of fifteen it read fifty-" sell fifty July wheat." This is an error or mistake it seems that had occurred in the transmission of this dispatch from some cause or other, and in its transmission from Atchison to the persons to whom it was addressed in St. Louis. That in pursuance of the dispatch which they received they made a contract according to its directions and sold in the name of White, Washer & King, to some parties in St. Louis, fifty thousand bushels of wheat instead of fifteen. It is claimed here, 'and I believe it is admitted, that this dispatch, construed by the terms and understood by men dealing in grain, "fifteen" meant fifteen thousand July wheat. After the error was discovered, which was within a day or two, the plaintiffs in this case sought to relieve themselves from this contract, as it was not in accordance with what they intended to make; it was throwing a much larger burden and contract on them than they intended to enter into; and they had a conversation with the manager of the defendant company at Atchison, and stated the mistake and error, and the difficulty that it had got them into, and asked that the company should relieve them from it, and assume the responsibility and take the contract off their hands, or give some directJons about it; that the company did not do so. Mr. Levin, agent of defendant at Atchison, states that he did not have authority to act in that matter; at any rate, defendant did not do so, and no action was taken on its part, and two days afterwards plaintiffs in this case made the best of terms they could to settle up with the other parties in St. Louis, and be relieved from the responsibility of this contract, and in doing so it appears they sustained a loss of something over $900. They sustained damage by reason of this error, by reason of the over amount of thirty-five thousand bush· els, of nine hundred and forty some odd dollars. Now they bring this suit against the Western Union Telegraph Company to recover back these damages, alleging in their petition that the Western Union Telegraph Company, its agents, servants, and employes, were guilty of carelessness or negligence in transmitting this dispatch, and thus this mistake or error occurred, and from that arose the damages.
WHITE V. WESTERN UNION TELEGRAPH 00.
713
Now, the paper upon which this dispatch is written is a form pre· pared by the defendant company, and in it are certain rules and regulations limiting and restricting their liability in the transmission of the dispatch, and having been signed by the plaintiffs with these terms and conditions, which they say are agreed to, this in substance forms the contract upon which this dispatch was to. be transmitted. I say it in substance forms it, and limits it. There are some things, however, 'that are sought in this contract by the defendant company to relieve it from certain liability which the law will not permit, and that is that they cannot contract for immunity from damages occa· sioned by the culpable negligence or gross carelessness of their employes; and hence, if this mistake or this error arose from the cuI· pable, negligence or gross carelessness or willful neglect of the employes of the defendant company, then the defendant compa:cy would be responsible10r the damages that the plaintiffs have sustained. Be. cause, while the law imposes upon this corporation, not all the duty and responsibility of a common carrier yet they owe to the public certainly some degree of care and diligence on the part of their employes and servants to transmit and deliver the message prope.rly and safely. I say they owe some degree, although not a high de. gree; perhaps a slight degree of care and diligence would be all that would be required under the law. The burden rests upon the plaintiffs in the case to maintain the issues which they present; that is, the burden rests upon the plain-, tiffs to show that this error or mistake occurred through the culpable negligence or gross carelessness of the operators or employes of the defendant company. It is not sufficient for them to say there is a mistake which has occurred in transmitting this dispatch to the office of the company in St. Louis, but they must Rhow that it occurred through the gross carelessness or culpable negligence of the employes of the defendant company. The defendant in this case, of course, denies this carelessness or negligence, and it further claims that it should be relieved from responsibility for the transmission of 'this dispatch because it was obscure; and there is a stipulation in this printed matter, upon this form, in which it stipulated for immunity for the transmission of dispatches in cipher or obscure messages. That is a reasonable stipulation, and an alternative restriction that the law would permit the company to make; that is, if the dispatch is in cipher or obscure, that they do not understand the ing of it, if the operator does not understand the meaning of it, ,and did not understand the importance of the dispatch, and the necessity
714
of using tare and diligence, and damages in consequence of that might result and naturally follow from a failure to transmit the dispatch correctly, then the law says, if the operator did not understand it, the company should not be held responsible for the damage. So these are the two questions I wish to submit to you for your determination: First,. were the agents, servants, and employes, or operators, (perhaps I might confine it,) guilty of culpable negligence or gross carelessnes in transmitting this dispatch, and did error or mistake arise from that culpable negligence or gross carelessness? Next, dId the operators or employes understand what this dispatch meant, or was it obscure? These are the two questions, gentlemen of the jury, for you to determine; and I have formulated the law upon these two questions, and will read it to you. If you find from the evidence that the telegram in question was erroneously and incorrectly transmitted or received through the culpable or s.ross negligence of the operators in the employment of the defendant company, either at Atchison or St. Louis, or both, and that the operators understood the meaning of said telegram, then the plaintiffs are entitled to a verdict. But if you should find from the evidence that the error was not occasioned by reason of the culpable negligence of the defendant's operators, but occurred through climatic influences, such as storms, lightning, rain, or other causes temporarily affecting the insulation of the wires, or affecting the working of the instruments, then the defendant is notresponsible for the error, and is entitled to a verdict; or if this dispatch was obscure, and the operators did not understand the meaning of it, then they should not be held responsible. Upon that point, gentleman of the jury, you have heard detailed here by the witnesses who are experts; that art, as understood at this time, is subject, under certain circumstances, to difficulties and uncertainties, and hence the reasonableness of the telegraph company to limit their legal responsi.bility in the transmission of dispatches; and those uncertainties and difficulties, as you have beard detailed here by the witnesses, result from various causes, mostly from climatic iufluences or the state of the weather. It may affect the insulation of the wires, or by striking against some other obstruction, or by being overcharged with electricity. When these things occur the witnesses tell you that they find difficulty in transmitting and receiving dispatches correctly; that the art has not become so perfect but that under certain circumstances during storms, ftnd under certain circumstances which I have related, there is more
WHITE V. WESTERN UNION TELEGRAPH
at
715
difficulty in transmitting dispatches; and the use of care and diligence, even, will not enable them under all circumstances to transmit the dispatches just as they should be transmitted. These things, of course, should be considered and given their proper weight, and it is for you to determine. You have heard the evidence on the other side, when the weather is clear and fair, and the line in perfect order and the instruments all right, that nothing but unwarranted carelessness or gross negligence would result in an error of this kind. This is the testimony of the witnesses on the part of the defense, and they sub· stantially state that when the line is in order, and the instrument in order, the dispatch should be sent, unless the operator was grossly and culpably negligent, and received at St. Louis in .just the exact words desired. You have heard the evidence as to the coudition of the weather; you have heard the evidence as to the difficulty that the operator at St. Louis says he experienced in getting this dispatch; you have heard his testimony, that he thought there was some difficulty on the line somewhere; there seemed to be some· thing the matter. Now, was that error or mistake occasioned by reason of the difficulty on the line, arising from the weather or something interfering with the insulation of the wires, or something of that kind; or was it simply a matter of wanton carelessness or gross on the part of either the operator sending, or the operator receiving. this message. Gentlemen, you have to determine this from the evidence in the case. If the said dispatch was not obscure to the defendant's operators, and a slight degree of care and caution on their part would have prevented the said error, and they failed to exercise such degree of care and diligence in transmitting said dispatch, then said defendant is liable for any damages occasioned the plaintiffs by reason thereof; that is, the defendant and its operators are only held to a slight degree of care and diligence. If, however, the dispatch was obscure to the operators, or if said operators did URe such slight degree of diligence to transmit said dispatph correctly, then the company is not liable in damages. Now, upon that point, as to whether that dispatch was obscure to the agent or operator of the company, that means, in substance, did the operator understand what it meant? You will have to recollect the testimony upon that point. The testimony in reference to that is that the dispatch was in the form used by men dealing in grain; that it was a form wen understood by members of the board of trade in large cities and in St. Louis where this dispatch was sent; that defendant ·was
716
FEDERAL
tra.nsmitting a multitude of dispatches each day during the grain season, and other parties than plaintiff were sending dispatches couched in similar terms; and the statement of Mr. Levin, who was the manager of defendant there, and he did not deny but what he understood it, and because he understood it he thought the other operator did. Here you have, gentlemen, the evidence as to that. It is for you to determine from all the evidence whether it is reasonably establisbed and shown from the evidence in the case that the operators sending and receiving this dispatch understood what it meant. There has been some talk here to the jury about dealing in options, etc., and an instruction asked on that point, which I have refused to give, In fact, I did not know there was any such evidence before the jury until the deposition was read by Mr. Everest, attorney for defendant, in his argument as evidence for the defendant; but we have Mr. King, saying that it was a real transaction; that they were grain dealers ; they had some grain there, and they had contracted for the bal,ance of it with farmers, expecting to fill the contract. I did not know there was anything on the other side; nothing was read until the argument was made. I do not think anything was sent to the jury. The defendant asks for certain instructions, some of which, although I may have given them' to you, I will give certain of them as asked for, the others I refuse. Those I give are as follows: The jury are further instructed that while the dispatch in question might be understood among grain men to mean 50,000 bushels of ,wheat, to be delivered at any time during the month of July, 1879, yet said message, reading on its face, "Sell fifteen July wheat," would not of itself convey to the defendant or its agents any such nature or character of the dispatch, and in order for plaintiffs to recover they must establish by a preponderance of the evid,ence, to the satisfaetiop of the jury,that agent of the defendant receiving such dispatch for transmission was informed or knew the true meaning and,nature of the dispatch; that the 9perator was informed, or knew wjth9ut being informed, if he had the information 1;lef9re. In that defendant or its agents might have observed the precaution necesi?fl!y to guard againEit the risk which might be incurred, its trne intent should haVE;), been disclosedtQ it or its ag,ents, and tl;1e jury find fro:r;n thE! E!videneethat tl;lenature an,d. character of the dispatch;, were disclosed to Or understood by the agents who transmitted suchdiBpatch, tht;ln t4e. plaintiffs entitleel to damages, which is tbe cOst of ,Ill,essage, of 50 Qel\ts. an,d w'hi c4, thifl eaSEl, is. ad:r;nittedto be t4e
WHITE V. WESTERN -UNION TELEGRAPH <l0.
717
The jury are instructed that in this case it is incumbent on the plaintiffs to establish by a preponderance of the evidence every fact necessary or essential for their recovery, and the mere fact that a mistake was made in the message transmitted would not of itself authorize any recovery against defendant for anything more than nominal damages, which, in this case, is the cost of the message sent. The jury are further- instructed that before they can find for the plaintiffs for more than nominal damages the plaintiffs must establish to the satisfaction of the jury, by a preponderance of the evidence, some thing more than the mere fact that a mistake was made in the transmission of the message, but must further so establish that Imch mistake was on account of gross negligence', or willful misconduct of the defendant or its agents, in the transmission of such message; and if the jury find from the evidence that the defendant exercised ordinary care in the transmission of such message, and no demand was made by plaintiffs to have such message repeated, then under the terms of the contract under which such message was sent, plaintiffs can recover only the costs of sending such message. The jury are instructed that in this case in no sense is the defendant to be held liable as a common carrier or subject to the rule governing common carriers; nor is the defendant to be held as an insurer of the correct transmission of the message; nor is the defendant liablfil for a failure to exercise extraordinary care, or failure to exercise even ordinary care and dili- gence,in the transmission of this message, the same being an nnrepeated message, and before- the :plaintiffs -can teco.ver any mOl1e ,than nominal damages herein, which is the price of sending the message, it is incumbent on the plaintiffs to establish by preponderance of the evidence that the defendant, its agents, or servants were guilty of gross negligence or willful misconduct in its duty herein. Gross negligence means that want of care which' a person habitually careless and negligellt would iIi 'business this case neither the Iiighe,st, deg.re,e care d,iligl'lllce :re,quired of defendant, as nothing. beyoJ:ld the exercise of ,slight.care was required 0'1' demanded of defendant; - The jury are instructed thattbe defendant would not be 'liable for errors or imperfections in transm:itting 'the message' which ,ll:iQBefrbfu -causes not withiri its contr(jl,:-thitt is, failure of the elElctri6il.1 irregularities.in its power or efficiency,and interruptions, Qr, ,heato,r cold; tlOns in the w{)rking ef.tbe-wirj:) arisingfrom necessary impellfeetiOOls or inherent characteristics in tIle
or
718
pertaining to the business of communicating by telegraph, or the machinery and implements invented for the purpose. On the part of the plaintiffs I give you the following: If the jury helieve from the evidence that the.mistake was made in transmitting the message through the gross negligence of the defendant or its agents and servants and that plaintiffs suffered damage by reason of such mistake in transmitting said message, the defendant is responsible for such damage, although the jury may believe from the evidence that plaintiff used one of the forms of having the terms printed at the top, as shown by the form set up in the answer to plaintiffs' petition, and that said plaintiffs assented and agreed to such terms, and did not require said message to be repeated, or its correct transmission insured. Gentlemen of the jury, if you find for the plaintiffs in this caseif you find the plaintiffs are entitled to a verdict-the measure of damage will be $948.05, with interest at 7 per cent. from the date of the demand, which is July 11, 1879; unless you should believe their right torecover upon the obscurity of the dispatch, or the liabil. ity of the company arising alone on the obscurity of the dispatch: in that case I would say as defendant claims, that plaintiffs are entitled to nominal damages only, it does not deny but what it is liable for cost of sending the message. You will find either one thing or the other. Gentlemen, you have got the form of the verdicts, and will fill the blanks as you may find and assess the damages.
TELEGRAPH COMPANIES-THE NATURE OF THEIR SERVICE. .A telegraph company is a public agency, and is subject to public regulation and control.(a) Itisboundt therefore, to receive and transmit messages for all impartially; and cannot give a preference to one individual or corporation over another. To this extent its nature and duties are those of a common carrier, and it would seem to follow that, as regards its liabilities for the performance of its functions, it should be held to the same extent as a common carrier under the rules of the common law. In an early case in California,(b) the court went as far. as this. "The rules of law which govern the liability of telegraph companies," said BALDWIN, J. t " are not new. Such companies hold themselves (a) Western U. Tel. Co. Y. Carew. 15 MIch. 626; New York, etc., Tel. Co. v. Drybnrg, 35 Pat St. 302; Bartlett v. Western U. Tel. Co. 62 Me. 211 i De Rutte v,.·New York,ete., Tel. Co. 30 How. Pro 413; 1 Daly, 517; Wonn v. Westell;! U. Tel. Co. 37 Mo. 4tH; Tyler v. Western U. Tel. 00.14 Ill, 168;
Parks Y. Alta California· Tel. Co. 13 Cal. 422; PHS.more v,·Western U. Tel. Co.78 Pa. St. 242; Ellls V. American Tel. Co. 13 Allen, 226. (6) Parka v. Alta California Tel. Co. 13 Cal. 422.
W:E;STERN UNION TELEGRAPH CO.
719
out to the public as engaged in a particular branch of business in which the interests of the public are deeply concerned. They propose to do a certain service for a given price. There is no diffeL'ence in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or a package along a route. The physicial agency may be different, but the essential nature of the contract is the same. The breach of contract in one case or the other is or may be attended with the same consequences; and the obligation to perform the stipulated duty is the same in uoth cases. The importance of the discharge of it in both respects is the same. In both cases the contract is binding, and the responsibility of the parties for the breach of duty is governed by the same general rules." A. similar opinion was expressed in the English court of common pleas in 1855,(c). JERVIS, C. J., saying that the defendant company was ., in the nature ofa carrier who would have a certain liability imposed upon him at common law, but might limit this liability by special notice, as a carrier could, subject to the condition or qualification that they could not limit it to the extent of protecting themselves against the consequences of their gross negligence." Later English cases (d) appear to qualify this expression: but the absorption of the telegraph in Great Britain by the government changes their relation to the people of that country to a considerable extent. In the United States, excepting a nisi prius decision of little authority,(e) the rule of the California court has not been followed, and telegraph companies are not held to the extraordinary responsibilities of common carriers: that is to say, they are not insurers of the correct transmission of the messages received by them, excepting the act of God and the public enemY.(f) The reasons for this doctrine are generally said to be best stated by JOHNSON, J., in a case decided in New York in 1866: .. The business in which the [company] is engaged, of transmitting ideas only from one point to another by rneansof electricity, upon an insulated and extended wire, and giving them expression at the remotest point of delivery by mechanical sounds, or by marks or signs indented, which represent words or single letters of the alphabet, is so radio cally and essentially different, not only in its nature and character, but in all its methods and agencies, from the business of transporting merchandise and material substances from place to place by common carriers, that the pecUliar and stringent rules by which the latter are controlled and regulated can have very little just and proper application to the former. And all attempts heretofore made by courts to subject the two kinds of business to the samelegl\l (c) McAndrew v. Electric Tel. Co. 17 C. B. 3. (d) Dickson v. Renters' Tel. Co. 3 C. P. Dlv. 7; 2 C. P. Dlv. 62.
(e) Bowen v. I,ake Erie Tel. Co. 1 Amer. Law Reg. 685; Allen, "el. Cas. 7. (f) Binney v. New YO"k, etc., R. Co. lil Md. -341; New York, etc., 'fel. Co. v. Dryburg, 35 Pa. St. 298; Shields v. Washington, etc. Tel. Co. 11 Amer. Law T.311; Allen, Tel. Cas.l; De RuUe "Y. New York, etc., Tel. Co. I Daly, 547; Breese "Y. United Stntes Tel. Co. 4.; Barb. 274; Western U. Tel. Co. v. Ward,.23 indo 377; Western U. Tel. Co. v. Carew, 15 Mich. 025; EIIIs v. American "Tel. Co. 13 Allen, 2.6; United Stales Tef. Co. v.
v. United GlIde..leeve, 28 IIId. 1I32; Stutes'!'el. Co. 46 N. Y. 744; 54 Barb. 606; 6 Ahb. Pro (N. S.) 4().;; I I,aus. 125; Leonard v. New York. etc., Tel. Co. 41 N. Y. 644; Passmore,.". Western U. Tel. Co.7d Pa. St. 238; Brynnt v. American Tel. Co. 1 Daly, 575; De Rnt!.e y. Ne", York, etc., Tel. Co. 3U How. Pr. 403; I Daly. &J7; Wann v. Weslern U. Tel. Co. 37 Mo. 472; Wash. ington, elc., Tel. Co. v. Hobson, 16 Grat. 122; Bartlettv. Weslel'n U. Tel. Co. 62 Me. 209; Wesl. ern U. Tel. CO. V. Fontaine, f8 Ga.433; Camp v. Weslern U. Tel. Co. 1 .Mele. (Ky.) 164; Aiken v. Tel. Co 5 S. C. 253.
720
'EDERAL BEPORTE&
rules and liabilities will, in my judgment, sooner or later have to be abandoned as clumsy and indiscriminating efforts and contrivances, which have no natural relation or affinity whatever, and at best but a loose and mere fanciful resemblance. The bearer of written or printed documents and messages from one to another, if such was his business or employment, might very properly be called and held a common carrier; while it would obviously be little short of an absurdity to give that designation or character to the bearer of mere verbal messages, delivered to him by mere signs of speech, to be communicated in like manner. The former would have something which is or might be the subject of property, capable of being lost, stolen, or wrongfully appropriated, while the latter would have nothing in the nature of property which could be converted or destroyed, or form the subject of larceny, or of tortious caption and appropriation even by the king's enemies."(u) DEGREE .OF CARE AND DILIGENCE REQUIRED. Nevertheless, the degree of care which telegraph companies are bound to exercise, if properIy laid down and applied, Will, perhaps, render their service as efficient, so far as the public is concerned, as though they were held to theengagernent of insurers. Not that there have not been considerable difference of opinion and some apparently illogical reasoning in the courts. Thus some courts, as in the principal case, have held them to a very low degreo of care, while others have adopted a better standard. .. Due and reasonable care,"(h) .. exact diligence,"(i) "ordinary care and diligence,"") are phrases which have been used to describe this latter requisite. They, however, all tend to require on the part of the companies the use of good apparatus and instruments, and reasonable skill, and a high degree of care and diligence in their operation."(k) POWEIt TO LIMIT LIABILrfY. It being now settled by an overwhelming weight of authority that a common carrier may limit his liability by a special contract made with his customer,"(l) it is hardly possible to doubt that the same freedom to enter into agreements prescribing the methods of carrying out its service, and the circumstances under which it is to be liable, must be g·iven to a telegraph company. Accordingly, it has been expressly held in a number of cases that a telegraph company may limit its ordinary liability by a contract or a notice assented to by the sender of the message."(m) NEGLIGENCE CANNOT DE CONTRACTED AGAINST. But a common carrier is not permitted to get rid of its liability for an act of negligence on its part by a contract or agreement with its customer.(n) Neither, and for the same .j
(8") Breese v. United States Tel. Co. 45 Barb. 274; 31 How. Pro 86. (h) Ellis v. American Tel. Co. 13 Allen, 226. (t) Passmore T. Western U. Tel. Co. 78 Pa. St. 238. (J) BRldwln v. United StRtes, etc., Tel. Co. 13 Allen, 226. (k) Western U. Tel. CO. T. Carew, 15 Mich. 626. (I) See LRwson on Carriers, f 28 et seq. and cases cited. (m) McAndrew v. Elrctrlc Tel. Co. 17 C. B. 3; Youngv. Western U. Tel. Co. 65N. Y. 163; Breese v. United States Tel. Co. 48 N. Y. 132: De Rutte v. New York, etc., Tel. Co. 1 Daly, 547; SweRtland v. Illinois, etc., Tel. Co. 27 Iowa, 433;
MRnville V. Western U. Tel. Co. 37 lowR,214; Western U. Tel. CO. V. BnchRnau. 35 Ind. 429; Western U. Tel. Co. v. Tyler, 74 III. ]68; 60 III. 421; Passmore v. Western U. Tel. Co. 78 Pa. St. 238; 9 f'hilR. 90; Harri. V. Western U. Tel. Co. 9 Phlla. 88; Wolf v. Western U. Tel. Co. 62 Pa. St. 83; Western U. Tel. Co. v. CRrew, 15 Mich. 525; Wonn v. Western U. Tel. Co. 37 Mo. 473; United States Tet. Co. v. GIMersleeve, 29 Md. 232; Camp v. Western U. Tel. Co. 1 Metc. 164; Western U: Tel. CO. V. GrahRm, 1 Cal. 230; Ellis v. American Tel. Co. 13 Allen, 226; Redpath .... Western U. Tel. Co. 112 M"ss. 71; Grinnell v. Western U. Tel. Co. 113 Mass. 299. ('n) Lawson on Carriers, § 28 et leq.
721
reasons of public policy, can a telegraph company escape liability for the consequences of the negligence of itself or duly-authorized agents.(o) SO'iIle courts, however, have restricted this lack of power to contract, to what is called" gross" negligence.(p) A better rule, however, has been laid down in the majority of the decisions, viz., that notwithstanding a condition in the contract between the sender and the company, the latter will still be liable for mistakes happening in consequence of its own fault, such as want of proper skill, or ordinary skill, on the part of its operatives, or the use of defective instruments, but will not be liable for mistakes occasioned by causes beyond its control, such as atmospheric changes, or the vagaries of electricity, . provided these mistakes could not have· been avoided by the exercise of ordinary care and skill on the part of the operating agents of the company.(q) CONDITIONS AS TO REPEATING ME'lSAGES. The blanks of a telegraph company usually contain a condition that if the message is not repeated-for which service an extra charge is asked-the company shall not be liable beyond a certain small amount; generally the sum paid for the telegram, or fifty times its amount. Such conditions are sustained as reasonable; but at the same time they are not allowed to exclude the companY's liability for negligence.(r) 'rhey are, however, a sufficient protection where the mistake or delay is not due to the negligence of the company or its servants.(s) OTHER CONDITIONS. Other conditions have been sustained as reasonable, viz., that the company shall not be liable unless the claim is presented within 60 days after sending the message.(t) KNOWLEDGE BY SENDER OF CONDITIONS. Of comse there can be no contract between the sender and the company, which the latter can set up to restrict its liability, unless it has been assented to by the former. But notice of the company's regulations, and the conditions which it seeks to put upon the sender, are given to him by printing them on the blanks dpon which the message is written, and by the sender using the blanks without dissent he is taken to assent to the conditions which they contain,(u) and he will not be (0) McAndrew v. Electric Tel. Co. 17 C. B.l; Western U. Tel. Co. v. Buchanan,35 Ind. 429; True v. Internntional Tel. Co. 60 Me. 19; Breeoe v. United st.tes Tel. Co. 48 N. Y.132; Redpllth v. Western U. Tel. Co. 112 Mass. 71; Grinnell v. Western U. Tel.Co.1l3 Mass. 299; Ems v.Amer. ican Tel. Co. 13 Allen, 226; Candee v. Western U. Tel. Co. 34 WiR. 471; Western U. Tel. CO. T. Fontaine, 68 Ga. 433; Wann v. Western U. Tel. Co. 37 Mo. 472; Dorgan v. Telegraph Co. 1 Amer. Law T. Rep. 406; Sweatland v. Illinois, etc., Tel. Co. 27 Iowa, 433. (p) As in Redpath v. Western U.Tel. Co. 112 Mass. 71; Grinnell v. Western U. Tel. Co. 113 Mass. 299. (q) SweatJantl v. Illinois, etc., Co. 27 Iowa, 433; Manville v. Western U. Tel. Co.37 Iowa, 214; Passmore v. Western U. Tel. Co. 78 Pa. St, 238; 9 Phila. 88; Candee v. Western U. Tel. Co. 34 Wis. 471; Western U. Tel. Co. v. Tyler, 74 Ill. 168; 60 111. 421; Aiken v. Telegraph Co.6 S. C. 3;;8; West' f" n. Tel. roo v. Graham, 1 Col. 230. (r) Sprague v. Western U. Tel. Co. 6 Daly. 200; Baldwin V. United States Tel. Co. 45 Barb. 505; 1 Lans. 126; 6 Abb. Pro (N.S.) 195; 45 N.Y.744; Bryant v. American TeLCo. 1 Daly.:75; ]\"ew York. etc., Tel. Co. v. Dreyburg, 35 Pa. St. 298; 3 Phila. 408; Dorgan V. Telegrapll Co. 1 Amer. Law. T. Rep. 406; Trnev. Internatlollal Tel. Co.60 Jlle.9; Binney v. New York, etc., Tel. Co. 18 Md. 341; Western U. Tel. Co. v. Graham, I Cn!. :30; ManvlJle v. Western U. Tel. Co. 37 Iowa. 214; Western U. Tel. CO. V. Fenton, 62 Ind.l; Hibbard v. Western Union Tel. Co.;l3 Wis. Seiler v. Western Union Tel. Co. 3 Amer. Law Rev. 777. (.) Id.; Schwartz v. Atlantic. etc .· Tel. Co. 18 How. 157; Becker V. Western Union Tel. Co. 11 Neb.B7. (t) Young v. Western Union Tel. Co. 65 N. Y. 163; WoIrv. Western Union Tel. Co. 62Pa. St.Il3. (u) Western Union Tel. ('0 v. Carew. 16 Mich. 255; De RnUe v. New York, etc., Tel. Co. 1 Daly, 647; 30 How. Pro 403.
v. 14,no.12-46
722
permitted to show that he did not read or understand the conditions.(c) For the same reason, if a person is familiar with the regulations of the companY-n as by having sent previous messages-he will be taken to have assented to those conditions if he sends a dispatch written on a business card of hi.; own.(w} BURDEN OF I)ROOF. From the fact that the company has failed to deliver the message as sent, the presumption of negligence al'ises, and the burden 01 proof is therefore on the company to show that the failure arose from a caus,' for which they are not legally responsible to auswer.(x) REFUSAL TO TRANSMIT. We have seen(rl) thal7 the company cannot legally refuse to send a message for anyone tendering, and that it cannot give a preference to one person or corporation over another.(b) It has been heM that it may refuse to send a dispatch which is expressed in indecent, obscent'_ or filthy language; but that, if such does not appear on the face of the dispatch, it cannot justify a refusal to transmit it, on the ground that the sage was sent for an illegal or immoral purpose.(c) MEASURE OF DAMAGES. The rule as to the measure of damages in actions against telegraph companies is well stated by EARL, C. J., in a New York case:(d) "The damages must be such as the parties may fairly be supposed to have contemplated when they made the contract. Parties entering int" contracts usually contemplate that they will be performed, and not that they will be violated. They very rarely actually contemplate any damages whicll would flow from any breach, and very frequently have not sutlicient information to know what such damages would be. * * * A party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of a rule, the actual damages sustained by the plaintiff are rethe facts." coverable. Thus, where a dispatch ordering "one shawl," which, when delivered, read" one hundred shawls;" (e) where the message, as delivered to the operator, read" two hand bonquets," but, as delivered to the receiver, read" two hundred bouquets;" (f) where the company delivered an inconect market reportj(g) where the message was never sent as ordered;(h) where an
As
Grinnell v. Western Union Tel. Co. 113 Ma,s 299; Redpath v. We>tern Union Tel. Co. 112 Mass. 71; I"eese v. United 8tates Tel. Co. 4S N. Y. 132; 45 Barb. 174 ; Young v. Western UnIon Tel. Co. 65 N. Y. 163; Wolf v, Western Union TeL Co. 62 Pa. St. S3; Western Union Tel. Co. v. Buchanan, 361nd. 429. (w) Westel'n Union Tel. Co. v. Buchanan, 36 Ind.420. Baldwin v. U. S. TeL Co. 45 N. Y. 744; De Rnttev.N Y_ Tel. Co_l Dnly,647; 30 How. Pl'. 413; Hittenhonse v. ladependeat Line. 44 N. Y. 2,3; Turner v. Hawkeye Tel. Co. 41 Iowa. 458; Bartlett v. Western Union Tel. Co_ Me. 200; n·ol'!lnn v. Telegraph Co. 1 ArneI'. Law 1'. Hep. 4'-6; Western Union Tel. CO. V. Carew, 16 Mlch_ 52[,; Tyler v. Western Union Tel. Co. 74 III. 168; GO Ill. Contrll, lSV,,"eatmna Y. jiilLlvir;.
etc. Tel. Co. 29 Iowa, 433; United States Tel. Co. v. GildersleevA, 29 Md. 232. (a) Ante, 11. (b) See, nlso,Western UnIon Tel. Co. v. Ward, Jnd. 317; United States Tel. Co. v. Western U. Tel. Co. 66 Barb. 46; Davis v. Western Union Tel. Co. 1 Cln. 100 (e) Western Union Tel. CO. Y. Ferguson, 57 Ind. 495. (d) Leonard v. New York. etc., Tel. Co. 41 N. Y. 614. (o) Bowen v. Lake Tel. Co. 1 ArneI'. Law Reg. . (I) New York, etc., Tel. Co. v. DreYbnrg,3 Phil". 408; 35 Pa. St. 298. Cg) Tnrner v. Hawkeye Tel. Co. 41 Iowa, 458. (h) S pragne v. We>tern lJ · reI. Co. 52 Ind. I; w.iJ:e '":. 'Vestern IT. Tel. Cf)4 37 Iowa, 214; De Rutte v. New York, etc., Tel. Co. 1 Daly, 547; 30
WHITE V. WESTERN llNION TELEGRAPH CO.
723
order for 5,000 .. sacks" of salt was delivered as calling for 5,000 .. casks where there was a mistake in a message ordering stock sold and other stock purchased ;(j) where wheat was ordered to be purchased at .. 22" and the message, as delivered, said .. 25;"(k) where the name of the receiver was misspelled,(l)-in all these cases the actual damages sllstained by the partiel:! were recovered. But, on the other hand, where the company is at fault, it cannot be held liable where this fault is not the proximate cause of the loss. Thus, A. telegraphs to B. to send him $500. The message, as negligently delivered, asked for $5,000. In accordance with the request B. sent $5,000, which A. absconded with. It was held that the company was not responsible at the suit of B.(m) And uncertain and contingent profits are not recoverablej(n) nor are any damages recoverable where the terms of the messd.ge, as delivered to the operator, are obscure, and are so unintelligible to him that he is unable to understand its import or its importance. But this rule is snbject to the qualification that the agents of a telegraph company will be held to possess such experience as to enable them to comprehend what might be unintelligible to others; in other words, the employes of telegraph companies will be presumed to be acquainted with the language of merchants, and the forms used by business men in telegraphing their orders, replies, and contracts.(o) CONNECTING LINES. The decisions are not uniform as to the company's liability for an injury on a line. Under the English rule, applicable to carriers of all kinds, the first carrier alone is liable. In some of the American states the rule is different, and the carrier on whose line the loss occurs may be sued. On the other hand, a telegraph company receiving a message directed to a place beyond its lines, a,nd receiving payment for the extra service, is liable for the negligence of any connecting line, for they are its agents in the service, and not the sender's.(p) WHO MAY BRING ACTION. In England, the recipient of a message cannot maintain an action against the company for damages by its negli-. gence. The obligation on the part of the company is one of contract with the sender, to which the receiver is not a party, and under which he can claim no rights. In the United States this technical rule is not recognized, but a telegraph company may be sued by the party to whom a message is addressed for damage resUlting from its neglect.(q) JOHN D. LAWSON. How.Pr.403; DaVIS v. Western U. Tel. Co. 1 Cln. 100; Pub v. Alta California Tel. Co. 13 Cal. 422. (I) Leonard v. New York,etc., Tel. 00. 41 N. Y. 654. (J) Rittenhouse v. Indiana, etc., Tel. Co. 1 Daly, 474; 44 N. Y. 263. (k) De Rntte v. New York, etc., Tel. Co. 1 Daly, 647. (z) LauslJerger v. MlIp;netic. etc., Tel. Co. 32 Barb.lJ3O. (m) Lowery v. We8tern UnIon Tel. Co. 60 N. Y 198. And see UnIon Tel. Co. v. Meyer, 61 Ala. 163. (n) Kinghorne v. Montrenl Tel. Co. IS U. C. Q. B. GO; Lane v. Montreal Tel. Co. 7 U. C. C. P. 73; J1ellnpre v. Paclllc, etc., Tel. Co. 21 Minn. 165; Breese v. United States Tel. Co. 46 Bllrh. 275; Hib. bard v. Western U. Tel. Co. 33 WIS. 50s; West. ern U. Tel. Co. v. Graham, 1 Col. 230; Sqnlre v. Western U. Tel. Co. 98 MU8. 232; True v. International Tel. Co. 60 Me.9; McCall v. West. ern UnIon '1'01. Co. 7 Abb. N. C. 161. (0) Thomp. Neg. 867. Hnd CHseS cited. (I') De Rntte v. Albany, etc ·· Tel. Co. 1 Daly, 647. (q) New York. etc.. R. Co. v. Dreyhnrg, 35 PH. st. 298; Elwood v·.Western Union Tel. Co. 45 N. Y.549; RORe v. United stotes Tel. Co. 6 Hoh. 300; Western UnIon Tel. Co. v. CRrew, 1& MIch. 6'l6.
724
REPORTER.
In re Ho 1. LABORER.
KING.
(District Court, D. Oregon.
January 15, 1883.)
The term" laborer" is used in the treaty with China of November 17,1880, and the act in aid thereof, of May 6, 1882, in its popular sense, and does not include any person but those whose occupation involves physical toil, and who work. for wages. 2. ACTOR.
A Chinese actor or theatrical performer is not a "laborer," within the pur. view of said treaty vr law; and such person is, therefore, entitled to come to and reside in the United States at pleasure. S. SECTION
6
OF THE ACT OF
1882.
The certificate provided for in section 6 of the act of May 6, 1882, is not theonly competent evidence that a Chinese person is not a laborer, and therefore entitled to come to and reside within the United 8tates, but the fact may be shown by any other pertinent and convincing testimony.
Habeas Corpus. William H. Adams, for petitioner. James F. Watson, for respondent. DEADY, D. J. This is a proceeding by habeas corpus to procure the deliverance of one Ho King for an alleged unlawful restraint upon his liberty. The writ issued upon the petition of Lo Wy, a subject of t-he Chinese empire, residing in Portland, and upon the allegation therein that King was not permitted to bring it himself, and was directed to W. Jarvis, the master of the steam-Ship T. O. Hook, under whose restraint King was alleged to be. The respondent brings the body into court, and for return to the writ says that on November 25, 1882, at the port of Hong Kong, Ho King took passage on the steam-ship T. O. Hook, whereof the respondent then was and now is the master, for a voyage to Honolulu via Victoria, B. C., and Portland, Oregon; that said vessel has proceeded on said voyage as far as this with said King on board; port, where it arrived on January 9, that King is an actor or theatrical performer by occupation or profession, and is not provided with a certificate from the Ohinese government showing his right to land in the United States, as is required by section 6. of the act of May 6, 1882, "to execllte treaty stipulations relating to Ohina," and therefore the respondent, in being advised and believing that said King was not entitled to the United that it wlluld be u;nlawful to permit him to go this port, has and does restrain him of his liberty so far as to detain him on board aaidsteam-ship, and not To this