Halsted v. Postal Telegraphcable Co.

• Decision Date: 10 November 1908
• Citation: 85 N.E. 1078,193 N.Y. 293
• Parties: HALSTED et al. v. POSTAL TELEGRAPHCABLE CO.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 293

85 N.E. 1078

HALSTED et al.

v.POSTAL TELEGRAPHCABLE CO.

Court of Appeals of New York.

Nov. 10, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Gilbert C. Halsted and another against the Postal Telegraph-Cable Company for the negligent transmission of a telegram. From a judgment of the Appellate Division (120 App. Div. 433,104 N. Y. Supp. 1016), reversing a judgment for plaintiffs, plaintiffs appealed. Order of reversal affirmed, and judgment absolute entered for defendant on the stipulation.

The plaintiffs brought this action to recover from the defendant the damage occasioned to them by the alleged negligence of the latter in erroneously transmitting to them a telegraphic message. The plaintiffs, being manufacturers of beef bags, in the city of New York, received from Armour & Co., of Chicago, a letter, asking the lowest ‘price on 25,000 sets of bags,’ and they replied that they would telegraph them a price at a later time. The plaintiffs then requested the Cannon Manufacturing Company, of Concord, N. C., as they allege, ‘to send them by wire the price for 200,000 yards each of the narrow and wide light beef cotton goods.’ On July 27, 1903, they received through the defendant a telegram from Concord, addressed to them; which read: ‘Delivered commencing about August fifteenth light narrow two eighth wide three eighth net,’ and was signed ‘Cannon Mfg. Co.’ Thereupon, and on the same day, the plaintiffs telegraphed and wrote to Armour & Co. a price, which was based on the quotations of the Cannon Manufacturing Company, as they were given in the telegram. Armour & Co. the same day telegraphed, in reply, an order for the bags, and the order was entered by the plaintiffs. On July 28th plaintiffs ordered, by telegram, from the Cannon Manufacturing Company 175,000 yards of the narrow and 150,000 yards of the wide cloth, and at the same time wrote a letter to the company confirming the telegram. On July 29th plaintiffs received a letter from the Cannon Manufacturing Company, inclosing a copy of the telegram, which it had delivered to the defendant, and it then appeared that the message should have read: ‘Deliveries commencing about August fifteenth light narrow two eighty wide three eighty net.’ The difference between the telegraphic message, as delivered to the defendant, at Concord, and as it was received by the plaintiffs at New York, was the word ‘deliveries' had become changed to ‘delivered’ and that the two words ‘eighty’ had become ‘eighth.’ It was shown that these quotations, which might not be very intelligible to the ordinary person, are well understood in the trade. The mistake made in the transmission of the quotations affected the contract made by the plaintiffs with the Armour Company, and caused a loss to them in the transaction. The plaintiffs endeavored to procure a cancellation of the contract with the Armour Company, by reason of the mistake in the telegram from the Cannon Manufacturing Company, upon which it had been based; but they were unsuccessful. The Cannon Manufacturing Company refused to assume the liability for the mistake. The damages demanded in the complaint were in the amount of the loss to the plaintiffs on the Armour contract. The telegram from the Cannon Manufacturing Company was written upon one of defendant's blank forms, which read: ‘Send the following message subject to the terms on back hereof, which are hereby agreed to.’ That was followed by the plaintiffs' address, the quotations of prices and the signature of the Cannon Manufacturing Company. Below were the words: ‘Read the notice and agreement on back.’ One of the terms of the agreement referred to reads as follows: ‘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, beyond the amount received for sending the same.’ There was, also, a stipulation limiting the liability of the telegraph company in the case of a repeated message, unless specially insured in accordance with a provision for such insurance.

The defense of the defendant, beyond a denial of the negligence alleged with respect to the transmission of the telegram from Concord, was based upon the terms of the contract between it and the sender of the message. There was no evidence of negligence in the transmission of the message other than in the changes made in the message between its delivery to the defendant and its receipt by the plaintiffs. There was evidence that atmospheric and electrical conditions and disturbances might affect the accurate transmission of a telegraph message, although the possibility of such changes being caused thereby in the symbols, or signals, as were effected in this case, was somewhat in dispute upon the evidence of the experts.

Motions of the defendant to dismiss the action, at the close of the plaintiffs' case and at the close of the whole case, were denied, and the trial court submitted to the jury the question whether the defendant was guilty of gross negligence in the performance of its undertaking. The court, upon a request of the defendant further to instruct the jury that ‘the terms and conditions on the blank * * * are reasonable and valid and constitute a contract between the parties,’ ruled that they were reasonable and valid, and constituted a contract between the company and the sender, ‘but not with the plaintiffs.’ To which ruling the plaintiffs excepted. A verdict was rendered for the plaintiffs for the amount claimed. Upon appeal to the Appellate Division, that court, by a divided vote of the justices, upon questions of law only, reversed the judgment, which the plaintiffs had recovered, and granted a new trial. The plaintiffs have appealed to this court from the order of reversal.

George D. Beattys, for appellants.

Charles F. Brown, for respondent.

GRAY, J. (after stating the facts as above).

It is the plaintiffs' claim that the defendant is liable to them, as the addressees of the telegraphic message, for the failure to properly perform its duty, from which liability it was not relieved by the terms of its contract with the sender of the message. The argument is made that the defendant, as a public service corporation, ‘owes a duty to the public, for the breach of which, a party injured has a right of action, which is unaffected by any contract of limitation, to which the injured person is not a party,’ notwithstanding the duty was undertaken by reason of such contract. So far as the plaintiffs' claim was predicated upon the alleged gross negligence of the defendant, in the performance of the undertaking to transmit to them the telegraphic message from the sender in North Carolina, it is sufficient to say that the evidence wholly failed to make out any case for the jury on that theory. It showed simply the commission of an error, which, so far as material in its consequences, occurred in the change of the word ‘eighty’ to ‘eighth.’ The letter ‘y’ was changed to the letter ‘h’ in two instances. Whether such changes were the inadvertent, or mistaken, act of the receiving operator, or of any operator at the relay station, or whether they were the result of atmospheric disturbances, or of perturbations of the electric fluid, to which concededly the transmission of telegraphic messages is more or less subject, is not material. The nature of the undertaking by a telegraph company suggests the possibility, if not the probability, of peculiar risks affecting it, whether in the one or the other way. However occurring, if by no willful misconduct, a mere mistake or error in the transmission of a message would not warrant a jury in finding that there had been more than ordinary negligence. See Breese v. U. S. Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526;Primrose v. Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883. The hazards attending upon the accurate performance by telegraph corporations of their function of transmitting messages are obvious and the prudential character of such regulations, as this defendant had adopted in order to guard against inaccuracy in transmission and to prevent mistakes from any cause, is evident. The importance of accuracy to the parties cannot always be apparent to the operator; but it is to the sender. Where the wording of a message is such as to be obscure in its meaning, or unintelligible to the ordinary reader, mistakes are reasonably possible in the transcribing. In any case the regulations of the telegraph company afford the means of making accuracy reasonably certain, or of effecting insurance against mistakes.

The question in this case must be: What legal relation did the defendant sustain to the plaintiffs; or what was the measure of...