Argument for Plaintiff in Error.

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 the 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 no hardship upon them. They engage in the business voluntarily. They have the entire control of their servants and instruments. They invite the public to entrust 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?

Argument for Plaintiff in Error.

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 their 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, in harmony with the previous decisions of this court. True v. International Tel. Co., 60 Maine, 1; Bartlett v. Western Union Tel. Co., 62 Maine, 209."

In Western Union Tel. Co. v. Hall, 124 U. S. 444, 458, Mr. Justice Matthews, in delivering the opinion of the court, says: "Where the negligence of the telegraph company consists, not in delaying the transmission of the message, but in transmitting a message erroneously so as to mislead the party to whom it is addressed, and on the faith of which he acts in the purchase or sale of property, the actual loss based upon changes in market value are clearly within the value for estimating damages. Of this class examples are to be found in the cases of Turner v. Hawkeye Telegraph Co., 41 Iowa, 458, and Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263."

In Dorgan v. The Telegraph Co., 1 Amer. Law Times, (N. S.,) 406, Mr. Justice Woods said: "The telegraph company is engaged in a quasi public employment. Incalculable sums depend upon the alacrity, care, and good faith which it brings to the discharge of its duties. The whole business of the commercial world is to a degree dependent upon it. The public has a right to exact at least ordinary diligence. common carrier is not allowed to protect himself by contract from liability for the result of his own negligence.

A

"There seems to be no good reason why the same rule should not be applied to a telegraph company."

The law as to the liability of common carriers has been so

Argument for Plaintiff in Error.

thoroughly settled by this court that the plaintiff will content himself with simply stating the proposition and the cases supporting the same as follows:

A common carrier cannot stipulate for exemption from the consequences of his own neglect or that of his servants. Hart v. Pennsylvania Railroad, 112 U. S. 338; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; York Manufacturing Co. v. Illinois Central Railroad, 3 Wall. 107; Southern Express Co. v. Caldwell, 21 Wall. 264; Railroad Company v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Express, 93 U. S. 174; Grand Trunk Railway v. Stevens, 95 U. S. 655.

Apart from all legal views of the subject, every consid eration of natural justice revolts at the thought of binding a man by a contract which he has not read or which has not been called to his attention, specifically, and especially, as in this case, when the contract to which he is alleged to have been a party is upon the back of the paper which he signed.

And it is respectfully submitted that the law of this land is, or should be, with reference to these matters, that

1. Where a telegraph company, vested by the State with the power of eminent domain in consideration of its undertaking a great public franchise, accepts for pay from a citizen a message for transmission, it thereby becomes responsible for the accurate and exact transmission and delivery of that which it received; and if the message which it delivers differs from that which was accepted by it for transmission, and damage results to the sender, the proof by the sender of such error places upon the company the burden of justifying its negligence.

2. That such company cannot shift its responsibility as such common carrier by printing upon its blanks, furnished to the senders of messages, conditions exempting it from liability for errors and mistakes in the transmission of the messages, or for all liability in cipher or obscure messages if it once accepts the messages and receives pay therefor.

3. That such company certainly cannot limit its liability

Argument for Plaintiff in Error.

by such conditions, having once accepted a message for transmission, and received pay therefor, unless it shows affirmative notice of the conditions brought home to the sender.

It is admitted by nearly all of the courts and cases passing upon the subject, that for gross errors the company would undoubtedly be liable; that when a gross error had been committed, even the restrictive conditions would afford no protection, and the learned judge here impliedly goes that far. But is there any reason for the drawing of such distinction ? What is a gross error in such cases?

The plaintiff in any case against a telegraph company, is entirely without the means of showing how, or why, or when the mistake in a message occurred, excepting as he obtains such information from the company or its employés.

All that he can possibly show is that a mistake has occurred, somewhere and somehow occasioned by something which the defendant had done or omitted to do.

The defendant is bound to provide the best possible apparatus and the most experienced operators for its business. It is a fact of which the courts would now take judicial knowledge, that a telegraph company can transmit with absolute accuracy any written message in any language by sound, each letter being indicated by dots and pauses (or dashes, as they are called) in the working of the telegraph key.

The word as such is not sent over the wire as a whole, but letter by letter. It is not written down by the instrument, but received by the operator by means of the sound and written by him upon paper as he hears it.

These facts are in evidence in this case as well.

There is therefore no reason for any error in the transmission of a message excepting through a mistake made by a negligent operator, or through some outside cause over which the company had no control. The clearness or obscurity of a message has nothing to do with its accurate transmission. It would thus seem clear that the accurate transmission of a cipher message or word is a matter of no more difficulty than an ordinary message, and there can be no valid reason given in support of the arbitrary condition sought to be imposed by

Opinion of the Court.

defendant in the matter of such messages, other than what applies to ordinary words.

If a letter in a word is inaccurately transmitted, apart from the question of outside influences, the error must have come about either from a negligent sign by the sending operator, or from a negligent hearing by the receiving operator. And the defendant in error is challenged to assign other causes for the same, if any it can find.

In the present case, it was affirmatively shown that the message reached its last operator but one, with exactness clearly showing how easy such accuracy was.

Then it suffered these changes. The absence of outside, disturbing agencies, was demonstrated by the plaintiff in so far as he could be expected so to do, when it was shown that the atmospheric conditions at Ellis were perfect.

If any other outside influences affected the wires or the message, they are entirely within the knowledge of the defendants, and may furnish good matter of a defence to the jury.

Mr. Silas W. Pettitt and Mr. John H. Dillon for defendant in error. Mr. George H. Fearons and Mr. Rush Taggart were on their brief.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

This was an action by the sender of a telegraphic message against the telegraph company to recover damages for a mistake in the transmission of the message, which was in cipher, intelligible only to the sender and to his own agent, to whom it was addressed. The plaintiff paid the usual rate for this message, and did not pay for a repetition or insurance. of it.

The blank form of message, which the plaintiff filled up and signed, and which was such as he had constantly used, had upon its face, immediately above the place for writing the message, the printed words, "Send the following message