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delivered to Darling for several days; and it was held that by proof of these facts a prima facie case was established.

In Breese v. United States Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526, it was proved that a message directing the purchase of seven hundred dollars in gold was changed to one ordering seven thousand dollars in gold, and it was said, though not necessary for the decision of the case, that it was not prima facis proof of negligence.

The rule laid down in the first two cases has been followed by the courts of other states, and is approved by the text-writers: Wharton on Negligence, sec. 756; Gray on Communication by Telegraph, secs. 26, 53, 54, 77; Abbott on Trial Evidence, c. 32; 2 Greenl. Ev., sec. 222 a, note; 2 Shearman and Redfield on Negligence, sec. 542; 2 Thompson on Negligence, 837; 3 Sutherland on Damages, 295.

The court correctly instructed the jury that the evidence made out a prima facie case of negligence against the defendant.

In the cases holding that telegraph companies are only liable when grossly negligent, there were contracts exempting them from all liability, except to refund the tolls received for negligently sending or delivering the communication. Without considering whether there is any legal distinction to be drawn between gross and ordinary negligence in such cases, it is sufficient to say that these cases are not germane to the question in the case at bar.

At the time this message was received the plaintiff was one of defendant's share-holders, and it was offered to be proved, in defense of the action, that the board of directors had adopted a resolution that it would not be liable for mistakes or delays in the transmission or delivery of unrepeated messages, and would not be liable for damages arising from delays in the transmission or delivery of a repeated message beyond an amount specified; and it was insisted that be, being a shareholder, was chargeable with notice of this resolution. The regulations were excluded, and the defendant excepted. In this there was no error, for a share-holder in a corporation is not chargeable with contructive notice of resolutions adopted by the board of directors, or by provisions in the by-laws regulating the mode in which its business shall be transacted with its customers, and the plaintiff's rights, arising out of defendant's contract to transmit the message, were in no wise limited by its regulations or by-laws not brought to the plaintifik knowledge: Hill v. Manchester and Salford Water Works Co., 5 Barn. & Adol. 866; Rice v. Peninsular Club, 52 Mich. 87; Morawetz on Corporations, secs. 500, 500 a.

The court instructed the jury that the plaintiff was entitled to recover the difference between the market value of the stock on the morning of July 31st and the sum which he paid for it on the morning of the following day. It distinctly appeared on the face of the dispatch that it was an order to buy shares; and in such cases the liability of the corporation not being limited by a special contract, the measure of damages is the difference between the market value of the shares at the time when the dispatch should have been delivered, and the sum paid for them in the market on the receipt of the message: Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263; 4 Am. Rep. 673; Leonard v. New York etc. Tel. Co., 41 N. Y. 544; 1 Am. Rep. 446; Squire v. Western Union Tel. Co., 98 Mass. 232; 93 Am. Dec. 157; Western Union Tel. Co. v. Hall, 124 U. S. 444; United States Tel. Co. v. Wenger, 55 Pa. St. 262; 93 Am. Dec. 751; 3 Sutherland on Damages, 307.

It is insisted on behalf of the defendant that the court erred in excluding from the consideration of the jury the conditions printed on form No. 2. It is settled that a telegraph company incorporated under the general statutes of this state may by contract limit its liability for mistakes or delays in the transmission or delivery, or for the non-delivery, of messages, caused by the negligence of its servants, if the negligence be not gross, to the amount received for sending the dispatch: Breese v. United States Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526; Kiley v. Western Union Tel. Co., 109 N. Y. 236. But it has never been decided by the court of last resort that such a company can by notice limit its liability for such mistakes or delays.

Breese v. United States Tel. Co., 45 Barb. 274, 48 N. Y. 132, arose out of the erroneous transmission of a message written on a blank containing printed conditions, and it was held that a party by writing his dispatch on the blank assented to the printed terms and conditions. In discussing the question it was said: “They (telegraph companies) 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.” We think this remark cannot be regarded as an adjudication that the common-law liability of a

telegraph company may be limited by a mere notice, unless it is brought to the personal knowledge of the gender of the mesbage and he is shown to have assented to it. In this state & common carrier may by an express contract with the shipper exempt itself from liability for loss or damage occasioned by the negligence of its servants: Wells v. New York C. R. R. Co., 24 N. Y. 181; Bissell v. New York C. R. R. Co., 25 N. Y. 442; 82 Am. Dec. 369; Poucher v. New York Central R. R. Co., 49 N. Y. 263; 10 Am. Rep. 364; Cragin v. New York C. R. R. Co., 51 N. Y. 61; 10 Am. Rep. 559; Spinetti v. Atlas S. S. Co., 80 N. Y. 71; 36 Am. Rep. 579; Mynard v. Syracuse etc. R. R. Co., 71 N. Y. 180; 27 Am. Rep. 28; Wheeler on Carriers, 76, 86; But a common carrier cannot by notice limit its common-law liability to safely carry and deliver goods without evidence of the shipper's assent to the limitation proposed: Hollister v. Nowlen, 19 Wend. 234; 32 Am. Dec. 455; Cole v. Goodwin, 19 Wend. 251; 82 Am. Dec. 470; Clark v. Fazlon, 21 Wend. 153; Camden etc. Trans. Co. v. Belknap, 21 Wend. 354; Dorr v. New Jersey Steam Nao. Co., 11 N. Y. 485; 62 Am. Dec. 125; Blossom v. Dodd, 43 N. Y. 264; 3 Am. Rep. 701.

Telegraph companies organized, like the defendant, under chapter 265 of the Laws of 1848, and the acts amendatory thereof and supplementary thereto, like companies incorporated for the carriage of goods and passengers, owe duties to the public. Such corporations, like railroads, may exercise the right of eminent domain, and they are required to exercise due diligence to transmit, with celerity and skill, all messages delivered to them, subject to such reasonable rules as may be adopted to protect their rights and facilitate the performance of their duties. They, like common carriers, have become necessary instrumentalities for conducting the business of the country, and they owe the same duty to the public, and we think should be held to the same rule in respect to their right to limit their liability by notice. In this state the doctrine that the common-law liability could not be limited without an express contract has been applied to individuals and firms acting as common carriers, as well as to corporations.

In MacAndrew v. Electric Tel. Co., 17 Com. B. 3, it was said that the common-law liability of a telegraph company may be limited by notice, but the report of the case does not show whether the message was written on a blank with or without conditions. But in England it was held that carriers could by notice limit their liability for the loss of goods, even in

cases of gross negligence, which resulted in statutes providing that their liability could not be limited except by an express contract: 11 Geo. IV., sec. 6, c. 68; 1 Wm. IV.; 17 & 18 Vict., sec. 7, c. 31.

In Clement v. Western Union Tel. Co., 137 Mass. 463, a megsage, not written upon one of the defendant's blanks, was sent to its office for transmission. It was forwarded in due time, but was not delivered by the office at which it was received. In an action brought for the recovery of damages occasioned by the failure to deliver, it appeared that the plaintiff's agent who sent the message knew the terms and conditions on which the defendant by its rules provided that messages should be bent over its line as set forth in the blank then in use by it; and it was held that this knowledge of the plaintiff's agent was binding upon him, and that no recovery could be had.

In the case last cited, a different rule was applied to telegraph companies from the one applied by the same court to express companies. In Gott v. Dinsmore, 111 Mass. 45, the plaintiff shipped goods by express, not taking at the time the usual receipt containing printed conditions limiting the liability of the company, with which the plaintiff was familiar, he having been in its employment, and issued many such receipts. It was held that mere notice brought home to the owner of the goods, by which the carrier seeks to limit its common-law liability, and the terms of which are not ex. pressly assented to, were insufficient to defeat a claim for loss. The court said: “Nor does the knowledge of the regulation which the plaintiff had previously acquired while in defendant's employment subject him to limitations imposed by the receipt." In Ellis v. American Tel. Co., 13 Allen, 226, the reasons are clearly and satisfactorily stated for the existence of the rule that telegraph companies are not, unless they so expressly contract, held to warrant or insure the accurate transmission or prompt delivery of messages, and are only liable for negligence. But we find no satisfactory reason in this or in any case for a rule that such companies may by notice limit their liability for negligence, nor do we see any in the nature of the business in which they are engaged. Carriers and telegraph companies are alike engaged in quasi public employments, and persons are, from necessity, compelled to employ the latter without more opportunity for choice and deliberation than when they select the former. As before shown, the liability on contract of carriers of goods which is

implied by law cannot be limited by notice, and it is difficult to see why telegraph companies should be permitted to limit a much less onerous obligation by a mere notice.

The judgment should be affirmed, with costs.

BRADLET and BROWN, JJ., delivered a dissenting opinion, of which the following is a synopsis: There was ample evidence in the case from which the jury could have found that the plaintiff knew of the regulations printed on form No. 2, and that all messages received and sent over the company's wiros were subject thereto. If the jury bad so found, it would have also been permissible for them to find that the message was sent subject to such conditions, and that the defendant's liability was limited to the amount charged for sending the message. A special and express contract is not necessary to limit the liability of the telegraph company for mistakes in the transmission of messages. In this respect such corporations differ from com. mon carriers. The reason for this distinction is very clearly pointed out in Ellis v. American Tel. Co., 13 Allen, 226. There is no conflict between Clement v. Western Union Tel. Co., 137 Mass, 463, and Gott v. Dinsmore, 111 Mass. 45, cited in the prevailing opinion.

It has been decided in this state that a telegraph company is not a common carrier, and is not subject to the peculiar liability of common carriers: Breese v. United States Tel. Co., 48 N. Y. 132; 8 Am. Rep. 526; Schwartz v. Atlantic and P. Tel Co., 18 Hun, 158; Kiley v. Western Union Tel. Co., 109 N. Y. 231.

The authorities cited establish the rule that a telegraph company may limit its liability for mistakes in the transmission of messages by reasonable regulations brought to the knowledge of its customers, and had the jury found, as they might have done upon the evidence in this case, that the plaintiff knew that such regulations had been established, and i ha the de. fendant's liability was limited to the amount charged for sending the message, anless it was ordered to be telegraphed back, it would also have been per. missible for them to find that he contracted with the defendant upon such oondition.

It was material to a proper disposition of the case that the regulations printed upon the blank put in evidence should have been read to the jury, and it was error for the court to exclude them, and for such error the judg. ment should be reversed, and a new trial granted.

TELEGRAPH COMPANIES, DUTY OF, to TransMIT AND Deliver Mes. BAG ES. — For a discussion of the rights, duties, and liabilities of telegraph companies generally, see extended note to Western Union Tel. Co. v. Blanch. ard, 45 Am. Rep. 486–500. Telegraph coinpanies are common carriers and public servants, and must therefore act whenever called upon, their charges being paid or tendered; they must transınit and deliver messages given to them for that purpose: Western Union Teh Co. v. Dubois, 128 III. 248; 15 Am. St. Rep. 109. But see Western Union Tel. Co. v. Munford, 87 Tenn. 190 10 Am. St. Rep. 630, and note.

TELEGRAPH COMPANIES — Proof or NEGLIGENCE. — As to pleading and evidence in actions against telegraph companies for negligence, see note to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 499, 500. Proving the contract and showing its breach casts upon the telegraph company the burden of showing want of negligence on its part: Western Union Tel. Co. v, Dubois, 128 III. 248; 15 Am. St. Rep. 109.

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