Fowler v. W. Union Tel. Co.

• Decision Date: 06 June 1888
• Citation: 15 A. 29,80 Me. 381
• Parties: FOWLER v. WESTERN UNION TEL. CO.
• Court: Maine Supreme Court

15 A. 29

80 Me. 381

FOWLER

v. WESTERN UNION TEL. CO.¹

Supreme Judicial Court of Maine.

June 6, 1888.

Report from superior court, Cumberland county.

Action to recover damages for the non-delivery of a night message sent by the plaintiff to one H. F. Googins, Union Stock-Yards, Ill. The message was received at Chicago, but before it could be transmitted to the Union Stock-Yards, where there was no night office, a fire broke out in the Chicago operating room, and the entire contents, including the copy of this message, were destroyed. The fire was caused by atmospheric influences, and without any fault on the part of the company The opinion states the facts in detail.

Woodman & Thompson, for plaintiffs. Baker, Baker & Cornish, for defendant.

FOSTER, J This case comes up on report. It appears that on the evening of August 20, 1883, the plaintiffs, whose business is that of pork-packing, delivered to the defendants' agent at Portland, for transmission and delivery, the following night message: "PORTLAND, August 20, 1883. To H. F. Googins, Union Stock-Yards, Ill.: Ship one car hogs tomorrow. THOMPSON, FOWLER & Co." The message never having been delivered by the defendants, this action is sought to recover damages alleged to have been sustained in consequence. In defense of the action the defendant introduced evidence, and established the following facts: At the Union Stock-Yards, which are about six miles from Chicago, the defendant company had only a day office,—open from half-past 6 in the morning till 10 o'clock in the evening. Night messages directed to the stock-yards, received at the Chicago office during the night, were necessarily kept in that office until after the opening of the office at the stock-yards on the following morning. This dispatch was received at the Chicago office during the night of August 20-21, and the copy was hung upon what was called the "Stock-Yard's Hook" in the operating room, awaiting the opening of the office at that place on the morning of the 21st. About 30 minutes past 6 that morning, and immediately prior to the opening of the stock-yards office, a fire suddenly broke out in the operating room of the Chicago office, and spread with such rapidity that nothing could be saved from the room, and this copy, together with everything in the room, was destroyed. The fire was first discovered in this room upon the back of the "switch-board," where it is covered with numerous wires necessarily running very close to each other, and was caused by the crossing of several wires charged with large batteries. This crossing resulted from atmospheric conditions, the moisture accumulating on the back of the switch-board forming a partial connection between the wires, and acting as a partial conductor, thereby causing the electric current to leave its proper course, with the result as above stated. That such accidents are exceedingly rare is not disputed, and that there are no improvements known to the art or any where in use by which the possibility of such an occurrence can be prevented. In consequence of this fire it became impossible for the defendant to deliver the plaintiff's message. This message delivered to the company was written upon a night-message blank, and after stipulating that the company would receive messages to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day, at reduced rates, there followed this condition: "That the sender will agree that he will not claim damages for errors or delays, or for non-delivery of such messages, happening from any cause, beyond a sum equal to ten times the amount paid for transmission," etc. Above the written message were these words: "Send the following night message, subject to the above conditions, which are hereby agreed to."

No evidence was offered at the trial or question raised in reference to the stipulations and condition further than what appears upon the message blank signed at the bottom of the message. Nor is any question raised by counsel in argument before this court in relation to the validity of such a condition as is found attached to this stipulation or agreement. By its very terms, if held valid, this condition would relieve the company from all liability whatsoever for errors, delays, or omissions "happening from any cause." It would protect them from all liability happening as the result of their own negligence. Whatever force or effect other courts may give to such conditions, whether as a regulation of the company or as a contract between the parties, it is now too well settled by this court to admit of question or contradiction that they are unreasonable, and void. Bartlett v. Telegraph Co., 62 Me. 209; True v. Telegraph Co., 60 Me. 9; Ayer v. Telegraph Co., 79 Me. 493, 10 Atl. Rep. 495. As in the case of common carriers, they cannot contract with their employers for exemption from liability for the consequences of their own negligence. Whether such conditions are reasonable or unreasonable must be determined with reference to public policy, rather than private contract. Express Co. v. Caldwell, 21 Wall. 270. The defense, however, is based entirely upon other grounds. No conditions contained in the stipulation are relied upon as a defense in this action. But it is claimed that under the facts in the case, concerning which there is no controversy, the defendant company cannot be deemed guilty of any negligence, and therefore cannot be held to respond in damages. To ascertain the duties and liabilities of the defendant company we must look to the nature of the employment, and, except so far as it has limited its ordinary obligations by any special stipulation which may be held to be reasonable, be governed by the general and well-established principles of law pertaining to such employment. It is now perfectly well settled by the great weight of judicial authority that although telegraph companies are engaged in what may appropriately be termed a "public employment," and are therefore bound to transmit, for all persons, messages presented to them for that purpose, they are not common carriers in the strict sense of the term. To be sure, they are engaged in a business almost, if not quite, as important to the public as that of carriers. But while the analogy between the common carrier of goods and common carrier of messages is very strong, nevertheless their responsibility differs in a manner corresponding to the difference in the nature of the services they perform. The common carrier of goods, in the absence of any special contract or regulation limiting its general liability, becomes an insurer of property intrusted to it for carriage; whereas, in the absence of any contract or regulation modifying the liability of telegraph companies, they do not insure absolutely the safe and accurate transmission of messages as against all contingencies, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and for any failure in such care and diligence they become responsible. This appears to be the doctrine now settled by the courts, and is founded upon reason. The following decisions in this country are authority, and may properly be cited in this connection. Bartlett v. Telegraph Co., 62 Me. 220, 221; Ayer v Same, 79 Me. 493, 10 Atl. Rep. 495; Ellis v Telegraph Co., 13 Allen, 232,—which hold them to the use of due and reasonable care, and liable for the consequences of their negligence in the conduct of their business to those sustaining loss or damage thereby. Breese v, Telegraph Co., 48 N. Y. 141; Leonard v. Telegraph Co., 41 N. Y. 571; Baldwin v. Telegraph Co., 45 N. Y. 751; Be Rutte v Telegraph Co., 1 Daly, 547; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Telegraph Co. v Graham, 1 Colo. 230; Sweatland v. Telegraph Co., 27 Iowa, 433; Telegraph Co. v. Carew, 15 Mich. 525; Telegraph Co. v. Neill, 57 Tex. 283; Telegraph Co. v. Hobson, 15 Grat. 122; Pinckney v. Telegraph Co., 19 S. C. 71, Smithson v. Telegraph Co., 29 Md. 167; Telegraph Co. v. Davis, 41 Ark. 79.

A more stringent rule, however, was at first suggested in two early cases. The earliest one in which the question of the liability of telegraph companies arose was that of Mac Andrew v. Telegraph Co., 17 C. B. (84 E. C. L.) 3, decided in England in 1855. This case, by...