Brown v. Postal Telegraph Cable Co.
| Decision Date | 17 November 1892 |
| Citation | 16 S.E. 179 |
| Parties | BROWN et al. v. POSTAL TELEGRAPH CABLE CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Granville county; WHITAKER, Judge.
Action by Brown & Knott against the Postal Telegraph Cable Company for damages occasioned by mistake in the transmission of a message. The court rendered judgment for plaintiffs, but only for the amount paid by them for the message. They therefore appeal. Reversed.
A stipulation on a telegraph blank limiting liability, unless specially insured, to 50 times the price paid for transmitting the message is void.
J. W. & A. W. Graham, for appellants.
Batchelor & Devereux, for appellee.
The plaintiffs were damaged by the negligence of defendant's agent in substituting the figures "forty-seven" in the message as delivered for "twenty-seven" in the message sent, by reason whereof the plaintiffs' tobacco was sold for a price less than it would otherwise have brought on the market. The message was written on the blank furnished by the Western Union Telegraph Company, with the well-known stipulation upon it that the company would not be liable for damages caused by mistakes or delays, unless repeated. This message was delivered to and sent by the agent of the defendant, the Postal Telegraph Company, but we prefer to treat the question presented as if there were but a single and controlling point involved, and to this we address ourselves. It was not ordered by the sender to be repeated and was therefore what is known as an "unrepeated message." Upon the admissions in the pleadings, and the verdict in response to the issues fixing the value of the tobacco at the time of the sale, the plaintiffs moved for judgment in their favor for the difference between the sum actually received by them and the value of the tobacco. His honor, in accordance with the decision in Lassiter v Telegraph Co., 89 N.C. 334, denied the plaintiffs' demand, and signed judgment in favor of the plaintiffs for the sum paid by the sender to the defendant for the transmission of the message. The plaintiffs appealed, and this brings up again the question whether the stipulation upon the back of the blank, and made part of the contract, as before referred to, is valid and binding upon the parties. It was held by a divided court in Lassiter v. Telegraph Co. supra, that a stipulation contained in a form used by a telegraph company in its business operations, to the effect that it will not be responsible for mistakes in transmitting unrepeated messages, is a reasonable one, and will be enforced by the courts. Lassiter's was the first case which came before this court involving a construction of the said stipulation, and its effect upon the rights and liabilities of the parties thereto. This court, recognizing the persuasive authority of the courts of last resort in other states, adopted the views expressed in a majority of the cases which had been decided, although even then there were very respectable authorities to the contrary. Since this decision was made, there has been much discussion, and many and conflicting adjudications upon the same question have been made in other courts, and we are induced to review the opinion heretofore announced by this court.
It was early held that telegraph companies were not common carriers and therefore not insurers, but that there was an analogy between the duties and responsibilities of these transmitters, for reward, of messages, and those of carriers of goods for hire, and that the former were, like the latter, held to a high degree of diligence in the conduct of their business. Thomp. Elect. § 137, and note. When the art of telegraphy was yet in its infancy, when its operators were untrained, its appliances crude, and its efforts tentative, it would have been unreasonable to require that skill which would be demanded in a more advanced stage, when, with practiced operators and perfected machines, the system had become an indispensable part of the business of the world. The condition printed as a part of the contract upon the back of the blank upon which messages were written, that toward against mistakes and delays the sender of a message should order it repeated at an additional charge of one half the regular rates, was considered not so much a stipulation against negligence as a reasonable precaution in order to procure accuracy in the transmission of messages by means of the electric current. It was then that by the fancied analogy between this system and the business of the common carrier the courts came to use the terms which had been used with regard to the latter, and to hold that the telegraph companies might, on account of the novelty of their operation, provide against...
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