Hugh Gillis v. Western Union Telegraph Co.
| Decision Date | 01 January 1889 |
| Citation | 17 A. 736,61 Vt. 461 |
| Parties | HUGH GILLIS v. WESTERN UNION TELEGRAPH COMPANY |
| Court | Vermont Supreme Court |
JANUARY TERM, 1889.
This was an action on the case for the negligence of the defendant in the transmission of a telegraphic message. Plea, the general issue, and trial by court at the September Term 1888, Veazey, J., presiding. The court found that the mistake was caused by want of due care on the part of the defendant's operators. The facts sufficiently appear in the opinion. Judgment for the plaintiff. Exceptions by the defendant.
Judgment affirmed.
Haskins & Stoddard, for the defendant.
The plaintiff, a peddler, telegraphed from Rochester, N.H., to the American Express Company's agent at Brattleboro, Vt., to "send my bale here." Through the want of due care in transmission, the letter "H " got changed to Y, so that when received at Brattleboro the message purported to come from Rochester, N Y., and the bale was sent there, to the damage of the plaintiff. The message was unrepeated, and written on one of the company's blanks containing the usual condition as to unrepeated messages, namely, that the company should not be liable for mistakes in the transmission thereof "whether happening by the negligence of its servants or otherwise beyond the amount received for sending the same." The plaintiff did not read this condition nor know what it was although he had sent and received a good many communications by telegraph.
Treating the condition as binding on the plaintiff if valid, although not brought home to his knowledge, as it was treated in argument, the question is whether it is valid or not.
It is very generally conceded that telegraph companies may limit their common-law liability by express contract, and also by rules and regulations when brought to the knowledge of their patrons and assented to by them. But as to the extent to which they may do this, and as to the reasonableness of the rules and stipulations by which they seek to do it, courts do not agree.
It seems to be a fundamental principle, running through all the cases, that rules and stipulations for immunity, in order to be valid, must be just and reasonable in the eye of the law, and not inconsistent with sound public policy. But the cases differ widely in the application of this principle, and largely, no doubt, because of the conflicting views as to the legal status of such companies.
A few of the earlier cases hold that they are common carriers, or if not strictly such, yet sufficiently so to make them amenable to the same law as common carriers. Parks v. Alta Cal. Tel. Co., 13 Cal. 422 (s. c. Am. Dec. 589), is a leading case of this character. But this view has not obtained; and it is now generally held in this country that telegraph companies are not common carriers nor liable as such, but are liable only for failure to exercise due care, and the ground of this proposition is, that although telegraph companies, like common carriers, are in the exercise of a public calling, and consequently under obligation to serve all who choose to employ them within the scope of their business, yet, that the difference between the transmission of intelligence by means of electricity and the transportation of goods by any means is so great, that telegraph companies are not common carriers, and that the principle of public policy that imposes upon common carriers the exceptional liability of insurers, is not applicable to them. Kiley v. W. U. Tel. Co., 109 N.Y. 231, 16 N.E. 75; Grinnell v. W. U. Tel. Co., 113 Mass. 299; Tyler v. W. U. Tel. Co., 60 Ill. 421; Birney v. Printing Tel. Co., 18 Md. 341; s. c. 81 Am. Dec. 607, and cases passim.
A few cases assign telegraph companies to the category of bailees for hire; as, Birney v. Printing Tel. Co., supra; Pinckney v. W. U. Tel. Co., 19 S.C. 71; and some others. And the argument is, that as the ground of their liability is the same as that of bailees the legal status of the two must be the same. But this doctrine is justly criticized, because telegraph companies are engaged in a business of a public nature, and are precluded by rights and duties incident thereto from occupying the legal status of an ordinary bailee for hire, whose rights and duties arise wholly from the contract of employment. Gray's Com. by Tel. s. 10.
Although there may be no analogy between the business of telegraph companies and that of public carriers of passengers for hire, yet we regard their legal status as practically the same. Both are engaged in a business of a public nature; both must serve all who come; neither are insurers nor liable as such, but both are liable for negligence.
The question, then, is, whether it is just and reasonable in the eye of the law, and consistent with public policy, that telegraph companies should be allowed to stipulate for immunity from liability for their own and their servants' negligence.
The Supreme Court of the United States holds that common carriers cannot lawfully stipulate for exemption from liability when such exemption is not just and reasonable in the eye of the law; that it is not just and reasonable in the eye of the law for them to stipulate for exemption from liability for the negligence of themselves or their servants; and that these rules apply to carriers of goods and to carriers of passengers for hire, and with special force to the latter. Railroad Co. v. Lockwood, 84 U.S. 357, 17 Wall. 357, 21 L.Ed. 627. If, then, as we have said, the legal status of telegraph companies and of carriers of passengers for hire is practically the same, that case is strong authority against the validity of the stipulation under consideration. "Conceding," the court says, "that special contracts made by common carriers with their customers, limiting their liability, are good and valid as far as they are just and reasonable, to the extent, for example, of excusing them for all losses happening by accident, without negligence or fraud on their part; when they ask to go still further, and to be excused for negligence, an excuse so repugnant to the law of their foundation and to the public good, they have no longer any plea of justice or reason to support such a stipulation, but the contrary." This case agrees with the general rule on the subject.
While courts differ widely as to whether telegraph companies can lawfully stipulate to any extent against liability for negligence, none appear to have gone the length of holding that they can properly stipulate against liability for gross negligence, as they call it. But many of the cases hold that regulations like the one in question as to non-liability in respect of unrepeated messages, and similar regulations, are reasonable precautions for telegraph companies to take, and are binding upon all who assent to them, so as to exempt the company...
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