Ayer v. W. Union Tel. Co.

• Decision Date: 27 August 1887
• Citation: 10 A. 495,79 Me. 493
• Parties: AYER v. WESTERN UNION TEL. CO.
• Court: Maine Supreme Court

10 A. 495

79 Me. 493

AYER

v. WESTERN UNION TEL. CO.¹

Supreme Judicial Court of Maine.

August 27, 1887.

On report from supreme judicial court, Penobscot county.

Action on the case to recover the sum of $80 alleged to be the damage sustained by the plaintiff through an error in the transmission of a telegram by the defendant company. The opinion states the facts.

Wilson & Woodward, for plaintiff. Baker, Baker & Cornish, for defendant.

EMERY, J. On report. The defendant telegraph company was engaged in the business of transmitting messages by telegraph between Bangor and Philadelphia, and other points. The plaintiff, a lumber dealer in Bangor, delivered to the defendant company in Bangor, to be transmitted to his correspondent in Philadelphia, the following message: "Will sell 800 M laths, delivered at your wharf, two ten net cash. July shipment. Answer quick." The regular tariff rate was prepaid by the plaintiff for such transmission. The message delivered by the defendant company to the Philadelphia correspondent was as follows: "Will sell 800 M laths, delivered at your wharf, two net cash. July shipment. Answer quick." It will be seen that the important word "ten" in the statement of price was omitted. The Philadelphia party immediately returned by telegraph the following answer: "Accept your telegraphic offer on laths. Cannot increase price spruce." Letters afterwards passed between the parties, which disclosed the error in the transmission of the plaintiff's message. About two weeks after the discovery of the error, the plaintiff shipped the laths, as per the message received by his correspondent, to-wit, at two dollars per M. He testified that his correspondent insisted he was entitled to the laths at that price, and they were shipped accordingly.

The defendant telegraph company offered no evidence whatever, and did not undertake to account for or explain the mistake in the transmission of the message. The presumption therefore is that the mistake resulted from the fault of the telegraph company. We cannot consider the possibility that it may have resulted from causes beyond the control of the company. In the absence of evidence on that point we must assume that for such an error the company was in fault. Bartlett v. Telegraph Co., 62 Me. 221.

The fault and consequent liability of the defendant company being thus established, the only remaining question is the extent of that liability in this case. The plaintiff claims it extends to the difference between the market price of laths and the price at which they were shipped. The defendant claims its liability is limited to the amount paid for the transmission of the message. It claims this limitation on two grounds.

1. The company relies upon a stipulation made by it with the plaintiff, as follows: "All messages taken by this company are subject to the following terms: To guard against mistakes or delays, the sender of a message 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, or for non-delivery of any unrepeated message, whether happening by negligence of its servants, or otherwise, beyond the amount received for sending the same." This is the usual stipulation printed on telegraph blanks, and was known to the plaintiff, and was printed at the top of the paper upon which he wrote and signed his message. He did not ask to have the message repeated. Is such a stipulation in the contract of transmission valid, as a matter of contract assented to by the parties, or is it void as against public policy? We think it is void. Telegraph companies are quasi public servants. They receive from the public valuable franchises. They owe the public care and diligence. Their business intimately concerns the public. Many and various interests are practically dependent upon it. Nearly all interests may be affected by it. Their negligence in it may often work irreparable mischief to individuals and communities. It is essential for the public good that their duty of using care and diligence be rigidly enforced. They should no more be allowed to effectually stipulate for exemption from this duty than should a carrier of passengers, or any other party engaged in a public business. This rule does not make telegraph companies insurers. It does not make them answer for errors not resulting from their negligence. It only requires the performance of their plain duty. It is ho hardship upon them. They engage in the business voluntarily. They have the entire control of their servants and instruments. They invite the public to intrust messages to them for transmission. They may insist on their compensation in advance. Why, then, should they refuse to perform the common duty of care and diligence? Why should they make conditions for such performance? Having taken the message and the pay, why should they not do all things (including the repeating) necessary for correct transmission? Why should they insist on special compensation for using any particular mode or instrumentality as a guard against their own negligence? It seems clear to us that, having undertaken the business, they ought without qualification to do it carefully, or be responsible for the want of care. It is true there are numerous cases in other states holding otherwise, but we think the doctrine above stated is the true one, and in harmony with the previous decisions of this court. True v. Telegraph Co., ...