Breese v. United States Telegraph Co.

amendatory thereof. That act provides that any number of persons may associate for the purpose of constructing a line of wires of telegraph through this State, or from or to any point within this State, upon such terms and conditions and subject to the liabilities prescribed by the act; and it authorizes any association or corporation formed under it to "make such prudent rules, regulations and by-laws as may be necessary in the transaction of their business, not inconsistent with the laws of this State or of the United States." (§ 4.) And it is declared by section 11, as amended by chapter 559 of the Laws of 1855, that "it shall be the duty of the owner or the association, owning any telegraph line doing business within this State, to receive dispatches from and for other telegraph lines and associations, and from and for any individual, and, on payment of their usual charges for individuals for transmitting dispatches as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under the penalty of $100 for every neglect or refusal so to do, to be recovered with costs of suit in the name of the person or persons sending, or desiring to send, such dispatch;" and the twelfth section declares it to be the further duty of every such owner or association to transmit all dispatches in the order in which they are received, under the like penalty of $100, to be recovered with costs of suit by the person or persons whose dispatch is postponed out of its order as therein prescribed. There are provisions in both of these sections having no application to this case, and, therefore, unnecessary to be set forth. No other specific duty is imposed by the act on the associations organized under it than those prescribed and declared by the said eleventh and twelfth sections. They relate to their receipt and transmission of dispatches "on payment of their usual charges for individuals," and their right and power to fix those at such rates as they may deem proper, with a prohibition to demand more from other telegraph lines and associations than from individuals. There is no limitation or restriction on their power to make such prudential rules, regulations and by-laws as they may deem necessary in the transaction of their business, except only that they shall not be inconsistent with the laws of this State or of the United States.

Under that general power, the defendants were authorized to prescribe such regulations as they deemed necessary to guard against errors or delays in the transmission or delivery of messages, and to

Breese v. United States Telegraph Co.

declare that a party who failed to comply therewith should assume all risks and losses resulting from such errors or delays.

In the exercise of that power, they, in their ordinary blanks on which the dispatches sent by them are written, after stating that "in order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought to be repeated by being sent back from the station to which it is directed. to the station from which it is sent, and compared with the original message," and that "half the tariff price will be charged for thus repeating and comparing," have inserted an agreement between the signer or signers of the message and the company, that the company shall not be responsible in case it is not so repeated for any such error or delay beyond the amount paid for transmission, unless specially insured and the amount of risk paid for and specified in the agreement at the time, which is followed by a direction or order immediately preceding the message to be sent, in the following terms: "Send the following message subject to the above conditions and agreements." The conditions are reasonable, and not against public policy; on the contrary, they subserve to carry out the objects for which telegraphic associations are created, and especially to secure the receipt of a message in the words in which it is written and delivered for transmission. A party using such a blank, and writing his dispatch thereon, assents to the terms and conditions on which it is to be sent. If he omits to read or to become informed of them, it is his own fault. A contract voluntarily signed and executed by a party, in the absence of misrepresentation or fraud, with full opportunity of information as to its contents, cannot be avoided on the ground of his negligence or omission to read it, or to avail himself of such information.

In this case there is no pretense of misrepresentation of fraud. It appears that the agent of the plaintiffs was the president of a bank at Palmyra, and that, as is stated in the case, "he had on hand at his office, which, to secure business, had been left there by the defendants, a lot of blanks like the one on which this message was written, and took the blank from among them to write this dispatch upon." After it was so written, it was taken by him to the office of the defendants, and presented to them for transmission to New York. Under this state of facts, the plaintiffs cannot be released from the legal obligation or effect of the contents of the instrume.t when perfected by the writing of the dispatch hereon, upon the VOL. VIII. 67

Breese v. United States Telegraph Co.

admission in the case that "he or the plaintiffs had never read the printed part of it." The defendants had a right, from the agent's presentation of it, to assume and act on the assumption that he was fully informed of the provisions of the paper he had signed.

It is stated as a fact in the case, that the agent paid for the trans mission of the message, but did not pay for or request to have the same repeated; but what was paid does not appear, and there was no insurance.

It follows, from the views above expressed, that the plaintiffs are precluded, by the express terms of their agreement, from recovering the amount claimed by them. It therefore becomes unnecessary to express any opinion on the question affecting the general power, duties and liability of the defendants, discussed with great care and ability by the learned counsel of the parties, or as to the validity of any of the other conditions or provisions, contained in the blank, but not applicable to this case.

It may be proper, however, to notice the point of the appellants' counsel, that the defendants cannot limit their liability in case of negligence; and in regard to it, I deem it sufficient to say that it does not appear as a fact in the case, nor is it, on what is stated, a conclusion of law, that the defendants or their agents were chargeable with negligence.

The statement in reference to it is, that the message was duly transmitted from the office at Palmyra, "but by error of some of defendants' operators, working between Palmyra and New York, the precise cause of which is unknown, it was received in New York" different from its original direction. The parties, by this admission, acknowledge and declare that the cause of the error is unknown; the court, therefore, cannot, in the face of this acknowledgment and declaration, say that it was attributable to negligence. It follows, from the views above expressed, that the judgment appealed from must be affirmed with costs.

EARL, C. It is not very important to determine whether telegraph companies are common carriers or not, because I find no decision, entitled to any weight or authority, which holds that the common-law liability of carriers attaches to them. They may, in one sense, be called common carriers, as they are engaged in a public employment, and are bound to transmit, for all persons, messages delivered to them for that purpose. Shearm. & Redf. on Neg. 606.

Breese v. United States Telegraph Co.

But if we call them common carriers in this sense, it does not follow that they become insurers, like the common carriers of goods. Shearm. & Redf. on Neg. 608; Redf. on Carr. 408.

The liability of telegraph companies is regulated by contract and the nature of their public employment. In the absence of any special contract limiting or regulating their liability, they do not insure the safe and accurate transmission of messages, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and if they fail in such care and diligence, they become responsible. But, while they are bound to transmit all messages delivered to them, they have the right to make reasonable rules and regulations for the conduct of their business. They can thus limit their liability for mistake, not occasioned by gross negligence or willful misconduct, and this they can do by notice brought home to the sender of the message, or by special contract entered into with him. Redf. on Carr. 405; McAndrew v. Electric Telegraph Co., 33 Eng. L. & Eq. 180; Birney v. New York & Washington Tel. Co., 18 Md. 341; N. Y. & Washington Printing Tel. Co. v. Drybury, 35 Penn. 298; Ellis v. American Tel. Co., 13 Allen, 226; Western Union Tel. Co. v. Carew, 15 Mich. 525; Wannan v. Western Union Tel. Co., 37 Mo. 472; Camp v. Western Union Tel. Co., 1 Metc. 164.

Here Cuyler wrote the message upon a blank, which had been furnished by the company, specifying that the company would not be held responsible for any error in the transmission of the message, unless it was repeated. He had had the blanks in his possession for some time, and had had abundant opportunity to read them. The blanks contained the terms upon which the company solicited and would accept his business, and when the message was written upon one of them and brought to the office of the company, its agent had the right to assume and believe that he accepted the terms, and assented to and understood the agreement. In the absence of any proof that the blanks were printed in such small type, or otherwise, as to mislead, or that Cuyler was so illiterate that he could not read, he must be presumed to have understood the contents of the blank, and upon the ordinary principle applicable to the principle of estoppel in pais, he must be held estopped from denying or disputing the agreement. Lewis v. Great Western Railway Co., 5 Hurl. & N. 867; Grace v. Adams, 100 Mass. 505; Wolf v. Western Union Tel. Co., 62 Penn. 87. This would not be so if the blank had been delivered

Gager v. Babcock.

to Cuyler at the time he wrote the message upon it, and he had no opportunity to read it, and to the knowledge of the telegraph operator had not read it. In such case there would have been no room for the application of the doctrine of estoppel, and no reason for i. dulging in presumptions.

We should reach the same conclusion if we held that defendant was a common carrier, with all the liabilities which attach to such carriers at common law; for it is well settled in this State that common carriers can contract for exemption from their commonlaw responsibility, as to every thing, certainly, except their gross negligence or willful misconduct. Bissel v. N. Y. Cent. R. R., 25 N. Y. 442; French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes,

111.

I am, therefore, of the opinion that the judgment should be affirmed, with costs.

Judgment affirmed.

NOTE.-See Sweetland v. Illinois, etc., Telegraph Co., 1 Am. R. 285; Wolf v. Western Union Telegraph Co., id. 387; Leonard v. The New York, etc., Telegraph Co., id. 446 and note; Rittenhouse v. Telegraph Co., 4 id. 673; Elwood v. The Western Union Telegraph Co., 6 id. 140; and Baldwin v. The United States Telegraph Co., id. 165. For a general discussion of the subject, see Redfield on Railways, vol. 2, p. 310 (5th ed.) The supreme court of Illinois has recently decided in a case not yet reported, that a telegraph company cannot restrict its liability by a notice requiring the repetition of the message.- - REP.

GAGER V. BABCOCK, appellant.

(48 N. Y. 154.)

Admiralty — liability of owner of vessel.

A vessel of which defendant, a resident of New York city, was the nominal owner, was libeled in Buffalo, while in charge of J. S., the master and real owner, for a penalty incurred by carrying passengers without license. J. S., without defendant's knowledge, procured plaintiff to become bail for her release; and on appeal from the decree enforcing the penalty, plaintiff became bail on the appeal bond, also. The decree was affirmed and paid by plaintiff, who brought action against defendant to recover the money so paid, claiming as surety in the appeal bond. Held, that as the vessel was libeled in a home port, and within communicating distance with defendant, J. S. had no right to bind him; also, that plaintiff must be deemed to have made the payment as defendant in the decree, and not as surety on the appeal bond.