In Breese v. United States Tel. Co., 48 N.Y. 132, the plaintiffs' agent wrote, at his own office in Palmyra, on one of the company's blanks, substantially like that now before us, and delivered to the company at Palmyra, a message addressed to brokers in New York, and in these words, "Buy us seven ($700) hundred dollars in gold."Summary of this case from Primrose v. Western Union Telegraph
Argued May 19th, 1871
Decided September term, 1871
Charles McLouth for appellant. G.P. Lowery for respondent.
The questions involved on this appeal do not, as stated by the appellants' counsel, "take a wide range," but are, by the facts detailed in the case, reduced to a narrow compass. It is therein stated that the defendants are a corporation duly incorporated under the laws of the State of New York, and engaged in the business of transmitting messages and dispatches by electric telegraph, for hire, over a line of telegraphic wires owned by them, at their office in Palmyra in this State; that they received and duly transmitted a dispatch or message, for and on behalf of the plaintiffs, to Cammaan Co., of the city of New York, directing the purchase of "seven hundred ($700) dollars in gold;" but, as the case states, by error of some of defendants' operators working between Palmyra and New York — the precise cause of which is unknown — it was received in New York, and sent and delivered to that firm, containing an order to buy "seven thousand dollars in gold." This dispatch or message was written by the plaintiffs' agent upon an ordinary blank of the defendants, containing certain provisions intended to limit their liability, particularly set forth in the statement of the case, and the principal question arises on the legal effect of those provisions.
It does not appear that the incorporation of the defendants is under a special act, and I shall assume, as the appellants' counsel states in his second point, that they are a corporation created under the general law (chap. 265 of the Laws of 1848) providing for the incorporation and regulation of telegraph companies, and the acts amendatory thereof. That act provides that any number of persons may associate for the purpose of constructing a line of wires of telegraph through this State, or from or to any point within this State, upon such terms and conditions and subject to the liabilities prescribed by the act; and it authorizes any association or corporation formed under it, to "make such prudential rules, regulations and by-laws as may be necessary in the transaction of their business, not inconsistent with the laws of this State or of the United States." (§ 4.) And it is declared by section 11, as amended by chapter 559 of the Laws of 1855, that "it shall be the duty of the owner or the association, owning any telegraph line doing business within this State, to receive dispatches from and for other telegraph lines and associations, and from and for any individual, and, on payment of their usual charges for individuals for transmitting dispatches as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under the penalty of $100 for every neglect or refusal so to do, to be recovered with costs of suit in the name of the person or persons sending, or desiring to send, such dispatch;" and the twelfth section declares it to be the further duty of every such owner or association to transmit all dispatches in the order in which they are received, under the like penalty of $100, to be recovered with costs of suit by the person or persons whose dispatch is postponed out of its order as therein prescribed. There are provisions in both of these sections having no application to this case, and therefore unnecessary to be set forth. No other specific duty is imposed by the act on the associations organized under it than those prescribed and declared by the said eleventh and twelfth sections. They relate to their receipt and transmission of dispatches "on payment of their usual charges for individuals," and their right and power to fix those at such rates as they may deem proper, with a prohibition to demand more from other telegraph lines and associations than from individuals. There is no limitation or restriction on their power to make such prudential rules, regulations and by-laws as they may deem necessary in the transaction of their business, except only that they shall not be inconsistent with the laws of this State or of the United States.
Under that general power, the defendants were authorized to prescribe such regulations as they deemed necessary to guard against errors or delays in the transmission or delivery of messages, and to declare that a party who failed to comply therewith should assume all risks and losses resulting from such errors or delays.
In the exercise of that power, they, in their ordinary blanks on which the dispatches sent by them are written, after stating that, "in order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought to be repeated by being sent back from the station to which it is directed to the station from which it is sent, and compared with the original message," and that "half the tariff price will be charged for thus repeating and comparing," have inserted an agreement between the signer or signers of the message and the company, that the company shall not be responsible in case it is not so repeated for any such error or delay beyond the amount paid for transmission, unless specially insured and the amount of risk paid for and specified in the agreement at the time, which is followed by a direction or order immediately preceding the message to be sent, in the following terms: "send the following message subject to the above conditions and agreement." The conditions are reasonable, and not against public policy; on the contrary, they subserve to carry out the objects for which telegraphic associations are created, and especially to secure the receipt of a message in the words in which it is written and delivered for transmission. A party using such a blank and writing his dispatch thereon, assents to the terms and conditions on which it is to be sent. If he omits to read or to become informed of them, it is his own fault. A contract voluntarily signed and executed by a party, in the absence of misrepresentation or fraud, with full opportunity of information as to its contents, cannot be avoided on the ground of his negligence or omission to read it, or to avail himself of such information.
In this case there is no pretense of misrepresentation or fraud. It appears that the agent of the plaintiffs was the president of a bank at Palmyra, and that, as is stated in the case, "he had on hand at his office, which (to secure business) had been left there by the defendants, a lot of blanks like the one on which this message was written, and took the blank from among them to write this dispatch upon." After it was so written it was taken by him to the office of the defendants and presented to them for transmission to New York. Under this state of facts, the plaintiffs cannot be released from the legal obligation or effect of the contents of the instrument when perfected by the writing of the dispatch thereon, upon the admission in the case that "he or the plaintiffs had never read the printed part of it." The defendants had a right, from the agent's presentation of it, to assume and act on the assumption that he was fully informed of the provisions of the paper he had signed.
It is stated as a fact in the case, that the agent paid for the transmission of the message, but did not pay for or request to have the same repeated; but what was paid does not appear, and there was no insurance.
It follows, from the views above expressed, that the plaintiffs are precluded by the express terms of their agreement from recovering the amount claimed by them. It therefore becomes unnecessary to express any opinion on the question affecting the general power, duties and liability of the defendants, discussed with great care and ability by the learned counsel of the parties, or as to the validity of any of the other conditions or provisions, contained in the blank, but not applicable to this case.
It may be proper, however, to notice the point of the appellants' counsel, that the defendants cannot limit their liability in case of negligence; and in regard to it, I deem it sufficient to say that it does not appear as a fact in the case, nor is it, on what is stated, a conclusion of law, that the defendants or their agent were chargeable with negligence.
The statement in reference to it is that the message was duly transmitted from the office at Palmyra, "but by error of some of the defendant's operators, working between Palmyra and New York, the precise cause of which is unknown, it was received in New York" different from its original direction. The parties, by this admission, acknowledge and declare that the cause of the error is unknown; the court therefore cannot, in the face of this acknowledgment and declaration, say that it was attributable to negligence.
It follows, from the views above expressed, that the judgment appealed from must be affirmed with costs.
It is not very important to determine whether telegraph companies are common carriers or not, because I find no decision, entitled to any weight as authority, which holds that the common-law liability of common carriers attaches to them. They may in one sense be called common carriers, as they are engaged in a public employment, and are bound to transmit, for all persons, messages delivered to them for that purpose. (Sherman Redfield on Neg., 606.) But if we call them common carriers in this sense, it does not follow that they become insurers, like the common carriers of goods. (Sherman Redfield on Neg., 608; Redfield on Car., 408.)
The liability of telegraph companies is regulated by contract and the nature of their public employment. In the absence of any special contract limiting or regulating their liability, they do not insure the safe and accurate transmission of messages, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and if they fail in such care and diligence, they become responsible. But while they are bound to transmit all messages delivered to them, they have the right to make reasonable rules and regulations for the conduct of their business. They can thus limit their liability for mistake, not occasioned by gross negligence or willful misconduct, and this they can do by notice brought home to the sender of the message, or by special contract entered into with him. (Redfield on Carriers, 405; McAndrew v. Electric Telegraph Co., 33 Eng. L. Eq., 180; Birney v. New York Washington Tel. Co., 18 Md., 341; N.Y. Washington Printing Tel. Co. v. Dryburg, 35 Penn., 298; Ellis v. American Tel. Co., 13 Allen, 226; Western Union Tel. Co. v. Carew, 15 Mich., 525; Wannan v. Western Union Tel. Co., 37 Mo., 472; Camp v. West. Union Tel. Co., 1 Metcalfe [Ky.] 164.)
Here Cuyler wrote the message upon a blank, which had been furnished by the company, specifying that the company would not be held responsible for any error in the transmission of the message, unless it was repeated. He had had the blanks in his possession for some time, and had had abundant opportunity to read them. The blanks contained the terms upon which the company solicited and would accept his business, and when the message was written upon one of them and brought to the office of the company, its agent had the right to assume and believe that he accepted the terms, and assented to and understood the agreement. In the absence of any proof that the blanks were printed in such small type, or otherwise, as to mislead, or that Cuyler was so illiterate that he could not read, he must be presumed to have understood the contents of the blank, and upon the ordinary principle applicable to the doctrine of estoppel in pais, he must be held estopped from denying or disputing the agreement. ( Lewis v. Great Western Railway Co., 5 Hurlstone N., 867; Grace v. Adams, 100 Mass., 505; Wolf v. Western Union Tel. Co., 62 Pa., 87.) This would not be so if the blank had been delivered to Cuyler at the time he wrote the message upon it, and he had no opportunity to read it, and to the knowledge of the telegraph operator had not read it. In such case there would have been no room for the application of the doctrine of estoppel, and no reason for indulging in presumptions.
We should reach the same conclusion if we held that defendant was a common carrier, with all the liabilities which attach to such carriers at common law; for it is well settled in this State that common carriers can contract for exemption from their common-law responsibility, as to everything, certainly, except their gross negligence or willful misconduct. ( Bissell v. N Y Cent. R.R., 25 N.Y., 442; French v. Buffalo, N.Y. and Erie R.R. Co., 4 Keyes, 111.)
I am, therefore, of the opinion that the judgment should be affirmed, with costs.