Sweetland v. Illinois and Mississippi Telegraph Company.

defendant is liable for this mistake, and the damages which it occasioned to the plaintiff.

The solution of the question involves the consideration of several others, which we proceed to notice in proper order.

The plaintiff, in the first place, maintains that the defendant 18 liable for this mistake, by the express provisions of the statute. Rev. § 1353.

The section is this:

"The proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employment, as well as for all damages resulting from a failure to perform any other duties required by law."

To this portion the defendant answers, that the statute applies only when the parties have made no special contract; that the legislature did not intend to prohibit parties to enter into such reasonable stipulations as they might deem proper respecting the transmission of messages; that, in this instance, the parties, viz., the company, on the one side, and the plaintiff, through his agents, on the other, did regulate their respective rights by the conditions and terms printed at the head of the message; and it is to these conditions and terms, so far as they apply, and not the general declaration of the statute, that resort must be had, to determine the measure of the defendant's liability.

To this the plaintiff rejoins, that the statute is founded on public policy, and is declarative of it; that it authorizes no regulations or contracts restricting the liability it imposes; and it is argued, that, since it is shown that, by repeating messages, mistakes may be avoided, it becomes, under the statute, the duty of the company itself to repeat the message-a duty which it cannot, by regulations, shift on to the public.

On this point the court below held with the defendant, as will be seen by reference to the instruction numbered one, copied in the statement of the case. If there was any error in this, it is one of which the defendant cannot complain. Our inclinations, however, are, that the point was rightly ruled below; but, since the exigencies of the present appeal do not require any positive determination of it, we pass it, with the statement, that we will concede, for the purposes of this case, that the statute does not make the defendant liable, at all events, and that it is competent for the company, notwithstanding the statute, to enter into stipulations, or to adopt reasonable rules,

Sweetland v. Illinois and Mississippi Telegraph Company.

conditions and regulations, governing the transmission of messages; and it will also be conceded, that the regulation respecting the repetition of messages (the only one involved in this case), is reasonable, and binding upon the parties. It is the more proper to pass the point without any decisive ruling, because it has occurred to us -though counsel, we believe, did not allude to the circumstancethat, since the message was delivered to the defendant in another state, it might be debatable whether our statute had any application to the case, even though the mistake may have happened in that part of the defendant's line which is situate in this state.

Respecting the right to limit liability by stipulation, or printed conditions, see, generally, Wann v. Telegraph Company, 37 Mo. 472, 1866 (similar statute to Iowa); Camp v. Telegraph Company, 1 Met. (Ky.) 164, 1858 (right affirmed without aid of statute); Ellis v. Telegraph Company, 13 Allen (Mass.), 226, 1866; MacAndrew v. Telegraph Company, 17 C. B. 3, 1855; Telegraph Company v. Carew, 15 Mich. 525, 1867; S. C., 7 Am. Law Reg. (N. S.) 18; Birney v. Telegraph Company, 18 Md. 341, 1862; Breese v. Telegraph Company, 45 Barb. 274, 1866; and see cases collected, 2 Am. Law Rev. 615-632; and by Prof. Dwight, 4 Am. Law Reg. (N. S.) 192-199.

Having assumed the validity of the printed conditions, so far as respects the repetition of messages, and that the message in question was sent subject thereto, the inquiry next arises, what is the meaning and effect thereof, so far as they relate to the facts of the present cause.

As to the cause of the mistake, the parties differed. One of the positions assumed by the plaintiff, if not the main one, was that the mistake was caused by a defective instrument in the office of the company at the place at which the message was received. He offered evidence tending to establish his theory. This theory was denied by the defendant, and it offered evidence tending to show that the mistake could not have been occasioned by the alleged defect in the instrument, but must have been occasioned by uncontrollable atmospheric causes.

The third and fourth instructions of the court (see statement) relate to these two conflicting theories.

In the third instruction, the court directed the jury that, although the contract was made as claimed by the company, yet "it was still the duty of the defendant to employ skillful operators and proper instruments, *** and if the message was not transmitted VOL. I.-37

Sweetland v. Illinois and Mississippi Telegraph Company.

correctly, not by reason of its not being repeated, but because of unskillful operators, or defective or imperfect instruments, the defendant is liable."

The fourth instruction lays down the converse proposition, and says to the jury, that, if the mistake was caused "by the interruption of the working of the telegraph by atmospheric electricity or other unavoidable or uncontrollable cause, then the defendant is not l'able."

The tenth instruction requires that the company, notwithstanding the special conditions, shall keep good instruments. The eleventh instruction substantially tells the jury that it is incumbent on the plaintiff to show that the mistake happened by reason of a defective instrument. The twelfth instruction lays down the law to be, that, if the mistake happened in consequence of the want of ordinary skill in the operators, or in consequence of the use of imperfect or defective instruments, the defendant would be liable. And, from the special terms and conditions at the head of the printed message, the defendant could not well complain of this statement of the law. On general principles it would be bound to employ skillful operators, to exercise due care, and to use good instruments. And, on general principles, if it omitted this duty, and damage ensued to a party in consequence of such omission, he would have his action therefor.

We do not understand the learned counsel for the company to insist that the general principles of law stated in the instruction's of the court would not be correct, if it were not for the printed conditions under which the message was sent, and which, it is insisted, modify the common-law liability of the company.

It is claimed that these conditions govern the rights and measure the liabilities of the parties, and that their effect is to exonerate "the company from any loss which may arise from mistakes in messages, whether arising from unavoidable causes, or the improper or negligent conduct of its servants." It is insisted by the distinguished counsel for the appellant, that such conditions are reasonable, because “the element used is subtle, intangible, fitful, capable of only partial control by man, and always liable to great interferences from causes entirely beyond human control. Atmospheric electricity is only one of the many difficulties with which the ec grapher has to contend. At first, the mode of dealing with these difficulties was not understood, nor is it yet matured, although men of talent, of scientific attainments, and of the closest observation, have devoted many years to the subject. Enough, however, has

Sweetland v. Illinois and Mississippi Telegraph Company.

been learned to demonstrate absolutely the impossibility of avoiding mistakes, except by repeating messages. * * Contracts such as the present are reasonable, and such as the company had a perfect right to make. Still, we are liable for gross negligence, notwithstanding the stipulation would exempt us. This is the hardest rule that has ever been held against a telegraph company." And he objects to the third instruction, "because it holds the company liable for ordinary negligence, instead of gross negligence;" and to the fourth instruction, because it is contended that its effect is, that if the mistake was not produced by unavoidable causes the company is liable.

The substance of the court's instructions, taken together, is, that the company, notwithstanding the special printed conditions, is responsible for mistakes happening in consequence of its own fault, such as want of proper skill, or ordinary care, on the part of its operators, or the use of defective instruments; but is not, under those conditions, responsible for mistakes occasioned by uncontrollable causes, such as atmospheric electricity, provided these mistakes could not have been ascertained and guarded against, or prevented by the exercise of ordinary care and skill on the part of the operating agents of the company.

Thus viewing the instructions of the court, they state the law correctly, at least not unfavorably to the defendant. The considerations mentioned by the appellant's counsel are quite sufficient to justify a court (in the absence of a statute otherwise settling the liability of the company) in holding reasonable the condition as to repeating messages, and exempting it from liability for mistakes in unrepeated messages, occasioned by unavoidable or uncontrollable causes, provided proper instruments have been used, and proper care and skill exercised by the company's employees to avoid or prevent the mistake.

But the arguments suggested furnish no reason why a company should be allowed to make general printed conditions, which should have the effect to relieve it from liability for "the improper or negligent conduct of its servants." Telegraph companies, like railroad companies, owe important duties to the public. Generally, there are no competing lines, and, if so, the business is necessarily in the hands of a few. These companies must act in good faith toward the public, and cannot, by general conditions, demand unreasonable concessions from those proposing to send messages.

Sweetland v. Illinois and Mississippi Telegraph Company.

It is not necessary to discuss what might be lawfully done by a special contract.

But I deny that companies can adopt general printed rules, exacting, as a condition of sending messages, that the sender shall exonerate or release the company from damages caused by defective instruments, or by the want of proper skill in the operators, or by their failure to use due care.

The court has carefully examined the printed conditions, underneath which the message in question was written, and its opinion is, that none of these conditions should be construed as undertaking to exempt the company from liability caused by its own fault. These conditions, fairly viewed, presuppose or assume that the company will discharge its reasonable, common-law duties, by using good instruments, and by employing skillful agents, who shall, in the performance of their duties, exercise due and proper care.

The statements in these "conditions," as to atmospheric causes, and the promise "in good faith to endeavor to send messages correctly and promptly," shows that the purpose obviously is to guard against liability for mistakes arising from atmospheric or other like causes, not to provide for exemption from liability for mistakes caused by its own avoidable faults.

If any sinister or unfair purpose, such as exoneration from liability for its own want of due care, was intended, such purposeconceding its lawfulness-should be unmistakably expressed, and will not be held by the court to lurk in any general language.

Nor can we assent to the proposition maintained by the appel. lant's counsel, that, under such conditions, "the company is held for gross negligence only, this being the hardest rule that has ever been held against a telegraph company."

We have examined all the leading cases known to have been decided, with respect to this subject, and have not found one 'old ing (when this was the exact point in judgment) that the ordinary printed conditions, as to repeating messages, have the effect to release the company from mistakes caused by its own want of ordinary care.

There is a dictum in MacAndrew's Case the first case which arose (17 Com. B. 3, 1835), to the effect that, by regulations, the companies may protect themselves from liability for mistakes in unrepeated messages, except those caused by their gross negligenc