Blackwell Milling & Elevator Co. v. Western Union Telegraph Co.

Opinion of the court by Pancoast, J.: Four general assignments of error are made in the petition in error, but, condensed, these raise but the sole question, whether or not in this territory a telegraph company can lawfully exempt itself from liability for losses occasioned by the negligence of its servants, even by express stipulation in the contract of carriage. The petition in this *380 case is not challenged, but the argument of defendant in error is that the contract above set out is valid and reasonable, and relieves the telegraph company from liability for loss occasioned by its negligence, and the case of Primrose v. Western Union Telegraph Co., 154 U. S. 1, is relied upon in support thereof. That case, however, has no application here. Upon investigation, we find that the supreme court of the United States there held that under the statutes of Pennsylvania a telegraph company was not a common carrier, and not subject to the same liabilities as such carrier; that the company not being a common carrier, the regulation was a reasonable one, and that the sender of an unrepeated message had no right of action against the company by reason of loss occasioned by delays arising from the negligence of the sending company. By section 700, Wilson’s Statutes 1903, a telegraph company is declared to be a common carrier, and by such provision, it is brought within the rules of law pertaining thereto. We see no good reason why the legislature may not, in the exercise of its discretion, when it deems such action appropriate, fix upon a telegraph company the status of. a common carrier; and, that having been done, such companies in this territory ’ are to be treated in all respects as invested with those privileges, and bound by those restrictions which the courts have seen fit to place around common carriers. Their rights are not those of an ordinary person, bearing no relation to the public, but as their standing is determined by legislative action to be that of a common carrier, their rights are correspondingly to be determined by their status so fixed. *381 By section 699, Wilson’s Statutes, 1903, “A carrier of messages for reward must use great care and diligence in the transmission and delivery thereof.” It must use the “utmost diligence” therein. And such being the law, it cannot rightfully be urged that a telegraph company which fails to deliver within a reasonable time messages entrusted to its care, has exercised in the delivery thereof the “utmost diligence” which the statute requires. As we view the decisions, it is now the settled doctrine of the supreme court of the United States that not even by express stipulations in the contract of carriage may a common carrier exempt itself from liability for losses caused by its own negligence. Such stipulations are unreasonable and contrary to public policy, and therefore void. Phoenix Ins. Co. v. Erie & Western Trans. Co., 117 U. S. 322; Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357; Railroad Co. v. Pratt, 22 Wall. 123; U. S. Express Co v. Kountze, 8 Wall. 342; Ormsby v. Union Pac. R. Co., 2 McCrary (U. S.) 48; 6 Cyc. 388. A telegraph company, then, being a common carrier under our statute, and being obligated to the exercise of the “utmost diligence” in the transmission and delivery of messages, is liable for the full amount of the loss sustained by reason of its failure properly to transmit or to deliver within a reasonable time the messages entrusted to it for that purpose, notwithstanding an express stipulation in the contract of carriage that the company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message beyond the amount received for sending the same. Such stipulations, as before stated, are un *382 reasonable, in the light of the character of such companies in this territory, and, being, contrary to public policy, are therefore void. Nor do we think our statute (Sec.706, Wilson’s Statutes, 1903) which provides that a common carrier, “cannot be exonerated by any agreement made in anticipation thereof from liability for its gross negligence, fraud or wilful wrong,” changes the rule in this respect, or renders lawful contracts which stipulate against recovery for losses occasioned by ordinary negligence. A carrier of messages for hire, where they are made common carriers by legislative enactment cannot lawfully stipulate for exemption from liability or loss brought about by even its ordinary negligence, but, after the rule announced by the supreme court of the United States in numerous decisions, it must be held to the full measure of their liability as common carriers, and cannot be allowed to take advantage of its powers, and of the necessities of the public, to exact exemption from that measure of duty which the statute and public policy demands. Construed in the light of the statutes of this territory the stipulation on the reverse of the form on which the messages in this case were written is void, on the ground that it is unreasonable and contrary to public policy. For the reasons given, the judgment of the court below is reversed, and this cause is hereby remanded to the district court of Kay county, with instructions to vacate and set aside the judgment sustaining the motion for judgment on the *383 pleadings for costs, and for further proceedings in accordance with this opinion. Hainer, J., yho presided in the court below, not sitting; Burwell, J., and Gillette, J., dissenting; all the>other Justices concurring.