White, Washer & King v. Western Union Tel. Co. wrongfully appropriated, while the latter would have nothing in the nature of property which could be converted or destroyed, or form the subject of larceny, or of tortious caption and appropriation even by the king's enemies." Breese v. United States Tel. Co. 45 Barb. 274; 31 How. Pr. 86. DEGREE OF CARE AND DILIGENCE REQUIRED.- Nevertheless, the degree of care which telegraph companies are bound to exercise, if properly laid down and applied, will, perhaps, render their service as efficient, so far as the public is concerned, as though they were held to the engagement of insurers. Not that there have not been considerable differences of opinion and some apparently illogical reasoning in the courts. Thus some courts, as in the principal case, have held them to a very low degree of care, while others have adopted a better standard. "Due and reasonable care" (Ellis v. American Tel. Co. 13 Allen, 226), "exact diligence" (Passmore v. Western U. Tel. Co. 78 Pa. St. 238), "ordinary care and diligence" (Baldwin v. United States, etc. Tel. Co. 13 Allen, 226), are phrases which have been used to describe this latter requisite. They, however, all tend to require on the part of the companies "the use of good apparatus and instruments, and reasonable skill, and a high degree of care and diligence in their operation." Western U. Tel. Co. v. Carew, 15 Mich. 525. POWER TO LIMIT LIABILITY.—"It being now settled by an overwhelming weight of authority that a common carrier may limit his liability by a special contract made with his customer (see Lawson on Carriers, § 28 et seq. and cases cited), it is hardly possible to doubt that the same freedom to enter into agreements prescribing the methods of carrying out its service, and the circumstances under which it is to be liable, must be given to a telegraph company. Accordingly, it has been expressly held in a number of cases that a telegraph company may limit its ordinary liability by a contract or a notice assented to by the sender of the message." McAndrew v. Electric Tel. Co. 17 C. B. 3; Young v. Western U. Tel. Co. 65 N. Y. 163; Breese v. United States Tel. Co. 48 N. Y. 132; De Rutte v. New York, etc. Tel. Co. 1 Daly, 547; Sweatland v. Illinois, etc. Tel. Co. 27 Iowa, 433; Manville v. Western U. Tel. Co. 37 Iowa, 214; Western U. Tel. Co. v. Buchanan, 35 Ind. 429; Western U. Tel. Co. v. Tyler, 74 Ill. 68; 60 Ill. 421; Passmore v. Western U. Tel. Co. 78 Pa. St. 238; 9 Phila. 90; Harris v. Western U. Tel. Co. 9 Phila. 88; Wolf v. Western U. Tel. Co. 62 Pa. St. 83; Western U. Tel. Co. v. Carew, 15 Mich. 525; Wann v. Western U. Tel. Co. 37 Mo. 473; United States Tel. Co. v. Gildersleeve, 29 Md. 232; Camp v. Western U. Tel. Co. 1 Metc. 164; Western U. Tel. Co. v. Graham, 1 Cal. 230; Ellis v. American Tel. Co. 13 Allen, 226; Redpath v. Western U. Tel. Co. 112 Mass. 71; Grinnell v. Western U. Tel. Co. 113 Mass. 299. White, Washer & King v. Western Union Tel. Co. NEGLIGENCE CANNOT BE CONTRACTED AGAINST. But a common carrier is not permitted to get rid of its liability for an act of negligence on its part by a contract or agreement with its customer. Lawson on Carriers, § 28 et seq. Neither, and for the same reasons of public policy, can a telegraph company escape liability for the consequences of the negligence of itself or its duly authorized agents. McAndrew v. Electric Tel. Co. 17 C. B. 1; Western U. Tel. Co. v. Buchanan, 35 Ind. 429; True v. International Tel. Co. 60 Me. 19; Breese v. United States Tel. Co. 48 N. Y. 132; Redpath v. Western U. Tel. Co. 112 Mass. 71; Grinnell v. Western U. Tel. Co. 113 Mass. 299; Ellis v. American Tel. Co. 13 Allen, 226; Candee v. Western U. Tel. Co. 34 Wis. 471; Western U. Tel. Co. v. Fontaine, 58 Ga. 433; Wann v. Western U. Tel. Co. 37 Mo. 472; Dorgan v. Telegraph Co. 1 Amer. Law T. Rep. 406; Sweatland v. Illinois, etc. Tel. Co. 27 Iowa, 433. Some courts, however, have restricted this lack of power to contract to what is called "gross" negligence. As in Redpath v. Western U. Tel. Co. 112 Mass. 71; Grinnell v. Western U. Tel. Co. 113 Mass. 299. A better rule, however, has been laid down in the majority of the decisions, viz., that notwithstanding a condition in the contract between the sender and the company, the latter will still be liable for mistakes happening in consequence of its own fault, such as want of proper skill, or ordinary skill, on the part of its operatives, or the use of defective instruments, but will not be liable for mistakes occasioned by causes beyond its control, such as atmospheric changes or the vagaries of electricity, provided these mistakes could not have been avoided by the exercise of ordinary care and skill on the part of the operating agents of the company. Sweatland v. Illinois, etc. Tel. Co. 27 Iowa, 433; Manville v. Western U. Tel. Co. 37 Iowa, 214; Passmore v. Western U. Tel. Co. 78 Pa. St. 238; 9 Phila. 88; Candee v. Western U. Tel. Co. 34 Wis. 471; Western U. Tel. Co. v. Tyler, 74 Ill. 168; 60 Ill., 421; Aiken v. Telegraph Co. 5 S. C. 358; Western U. Tel. Co. v. Graham, 1 Col. 230. - CONDITIONS AS TO REPEATING MESSAGES.-The blanks of a telegraph company usually contain a condition that if the message is not repeated for which service an extra charge is asked - the company shall not be liable beyond a certain small amount; generally the sum paid for the telegram, or fifty times its amount. Such conditions are sustained as reasonable; but at the same time they are not allowed to exclude the company's liability for negligence. Sprague v. Western U. Tel. Co. 6 Daly, 200; Baldwin v. United States Tel. Co. 45 Barb. 505; 1 Lans. 126; 6 Abb. Pr. (N. S.) 195; 45 N. Y. 744; Bryant v. American Tel. Co. 1 Daly, 575; New York, etc. Tel. Co. v. Dreyburg, 35 Pa. St. 298; 3 Phila. 408; Dorgan v. Telegraph Co. 1 Amer. Law T. Rep. 406; True v. International Tel. Co. 60 Me. 9; Binney v. New York, etc. Tel. Co. White, Washer & King v. Western Union Tel. Co. 18 Md. 341; Western U. Tel. Co. v. Graham, 1 Cal. 230; Manville v. Western U. Tel. Co. 37 Iowa, 214; Western U. Tel. Co. v. Fenton, 52 Ind. 1; Hibbard v. Western U. Tel. Co. 33 Wis. 558; Seiler v. Western U. Tel. Co. 3 Amer. Law Rev. 777. They are, however, a sufficient protection where the mistake or delay is not due to the negligence of the company or its servants. Id.; Schwartz v. Atlantic, etc. Tel. Co. 18 How. 157; Becker v. Western U. Tel. Co. 11 Neb. 87. OTHER CONDITIONS.- Other conditions have been sustained as reasonable, viz., that the insurance company shall not be liable unless the claim is presented within sixty days after sending the message. Young v. Western Union Tel. Co. 65 N. Y. 163; Wolf v. Western Union Tel. Co. 62 Pa. St. 83. KNOWLEDGE BY SENDER OF CONDITIONS.- Of course there can be no contract between the sender and the company which the latter can set up to restrict its liability unless it has been assented to by the former. But notice of the company's regulations and the conditions which it seeks to put upon the sender are given to him by printing them on the blanks upon which the message is written, and by the sender using the blanks without dissent he is taken to assent to the conditions which they contain. Western Union Tel. Co. v. Carew, 15 Mich. 255; De Rutte v. New York, etc. Tel. Co. 1 Daly, 547; 30 How. Pr. 403. And he will not be permitted to show that he did not read or understand the conditions. Grinnell v. Western Union Tel. Co. 113 Mass. 299; Redpath v. Western Union Tel. Co. 112 Mass. 71; Breese v. United States Tel. Co. 48 N. Y. 132; 45 Barb. 174; Young v. Western Union Tel. Co. 65 N. Y. 163; Wolf v. Western Union Tel. Co. 62 Pa. St. 83; Western Union Tel. Co. v. Buchanan, 35 Ind. 429. For the same reason, if a person is familiar with the regulations of the company - as by having sent previous messages · he will be taken to have assented to those conditions if he sends a dispatch written on a business card of his own. Western Union Tel. Co. v. Buchanan, 35 Ind. 429. - BURDEN OF PROOF.- From the fact that the company has failed to deliver the message as sent the presumption of negligence arises, and the burden of proof is therefore on the company to show that the failure arose from a cause for which they are not legally responsible to answer. Baldwin v. U. S. Tel. Co. 45 N. Y. 744; De Rutte v. N. Y. Tel. Co. 1 Daly, 547; 30 How. Pr. 413; Rittenhouse v. Independent Line, 44 N. Y. 263; Turner v. Hawkeye Tel. Co. 41 Iowa, 458; Bartlett v. Western Union Tel. Co. 62 Me. 209; Dorgan v. Telegraph Co. 1 Amer. Law T. Rep. 406; Western Union Tel. Co. v. Carew, 15 Mich. 525; Tyler v. Western Union Tel. Co. 74 Ill. 168; 60 Ill. 421. Contra, Sweatland v. Illinois, etc. Tel. Co. 29 Iowa, 433; United States Tel. Co. v. Gildersleeve, 29 Md. 232. REFUSAL TO TRANSMIT.- We have seen (ante, § 1) that the company cannot legally refuse to send a message for any one tendering, and that White, Washer & King v. Western Union Tel. Co. it cannot give a preference to one person or corporation over another. See, also, Western Union Tel. Co. v. Ward, 23 Ind. 377; United States Tel. Co. v. Western U. Tel. Co. 56 Barb. 46; Davis v. Western Union Tel. Co. 1 Cin. 100. It has been held that it may refuse to send a dispatch which is expressed in indecent, obscene or filthy language; but that, if such does not appear on the face of the dispatch, it cannot justify a refusal to transmit it, on the ground that the message was sent for an illegal or immoral purpose. Western Union Tel. Co. v. Fer guson, 57 Ind. 495. MEASURE OF DAMAGES.-The rule as to the measure of damages in actions against telegraph companies is well stated by Earl, C. J., in a New York case (Leonard v. New York, etc. Tel. Co. 41 N. Y. 514): "The damages must be such as the parties may fairly be supposed to have contemplated when they made the contract. Parties entering into contracts usually contemplate that they will be performed, and not that they will be violated. They very rarely actually contemplate any damages which would flow from any breach, and very frequently have not sufficient information to know what such damages would be. . . A party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts." As a rule, the actual damages sustained by the plaintiff are recoverable. Thus, where a dispatch ordering "one shawl," which when delivered, read “one hundred shawls" (Bowen v. Lake Erie Tel. Co. 1 Amer. Law Reg. 685); where the message, as delivered to the operator, read "two hand bouquets," but, as delivered to the receiver, read "two hundred bouquets" (New York, etc. Tel. Co. v. Dreyburg, 3 Phila. 408; 35 Pa. St. 298); where the company delivered an incorrect market report (Turner v. Hawkeye Tel. Co. 41 Iowa, 453); where the message was never sent as ordered (Sprague v. Western U. Tel. Co. 52 Ind. 1; Manville v. Western U. Tel. Co. 37 Iowa, 214; De Rutte v. New York, etc. Tel. Co. 1 Daly, 547; 30 How. Pr. 403; Davis v. Western U. Tel. Co. 1 Cin. 100; Parks v. Alta California Tel. Co. 13 Cal. 422); where an order for five thousand "sacks" of salt was delivered as calling for five thousand "casks" (Leonard v. New York, etc. Tel. Co. 41 N. Y. 554); where there was a mistake in a message ordering stock sold and other stock purchased (Rittenhouse v. Indiana, etc. Tel. Co. 1 Daly, 474; 44 N. Y. 263); where wheat was ordered to be purchased at "22" and the message, as delivered, said "25" (De Rutte v. New York, etc. Tel. Co. 1 Daly, 547); where the name of the receiver was misspelled (Lausberger v. Magnetic, etc. Tel. Co. 32 Barb. 530),—in all these cases the actual damages sustained by the parties were recovered. But, on the other hand, where the company is at fault, it cannot be White, Washer & King v. Western Union Tel. Co. held liable where this fault is not the proximate cause of the loss. Thus, A. telegraphs to B. to send him $500. The message, as negligently delivered, asked for $5,000. In accordance with the request, B. sent $5,000, which A. absconded with. It was held that the company was not responsible at the suit of B. Lowery v. Western Union Tel. Co. 60 N. Y. 198. And see Western Union Tel. Co. v. Meyer, 61 Ala. 153. And uncertain and contingent profits are not recoverable. Kinghorne v. Montreal Tel. Co. 18 U. C. Q. B. 60; Lane v. Montreal Tel. Co. 7 U. C. C. P. 73; Beaupre v. Pacific, etc. Tel. Co. 21 Minn. 155; Breese v. United States Tel. Co. 45 Barb. 275; Hibbard v. Western Union Tel. Co. 33 Wis. 558; Western Union Tel. Co. v. Graham, 1 Col. 230; Squire v. Western Union Tel. Co. 98 Mass. 232; True v. International Tel. Co. 60 Me. 9; McCall v. Western Union Tel. Co. 7 Abb. N. C. 151. Nor are any damages recoverable where the terms of the message, as delivered to the operator, are obscure, and are so unintelligible to him that he is unable to understand its import or its importance. But this rule is subject to the qualification that the agents of a telegraph company will be held to possess such experience as to enable them to comprehend what might be unintelligible to others; in other words, the employees of telegraph companies will be presumed to be acquainted with the language of merchants, and the forms used by business men in telegraphing their orders, replies and contracts. Thomp. Neg. 857, and cases cited. CONNECTING LINES.-The decisions are not uniform as to the company's liability for an injury on a connecting line. Under the English rule, applicable to carriers of all kinds, the first carrier alone is liable. In some of the American states the rule is different, and the carrier on whose line the loss occurs may be sued. On the other hand, a telegraph company receiving a message directed to a place beyond its lines, and receiving payment for the extra service, is liable for the negligence of any connecting line, for they are its agents in the service, and not the sender's. De Rutte v. Albany, etc. Tel. Co. 1 Daly, 547. WHO MAY BRING ACTION.-In England, the recipient of a message cannot maintain an action against the company for damages caused by its negligence. The obligation on the part of the company is one of contract with the sender, to which the receiver is not a party, and under which he can claim no rights. In the United States this technical rule is not recognized, but a telegraph company may be sued by the party to whom a message is addressed for damage resulting from its neglect. New York, etc. R. Co. v. Dreyburg, 35 Pa. St. 298; Elwood v. Western Union Tel. Co. 45 N. Y. 549; Rose v. United States Tel. Co. 6 Rob. 305; Western Union Tel. Co. v. Carew, 15 Mich. 525. |