Breese v. United States Telegraph Co.

By the Court, Johnson, J. It must be held, I think, that the printed heading to the paper on which the message, delivered to the defendant for transmission, was written, was, under the circumstances, something more than a mere notice to the plaintiffs’ assignor, by whom such message was writ- . ten, signed and delivered. Before the message was written under it, and signed, and delivered to the defendant, it was a general proposition to all persons desiring to send messages by the defendant’s peculiar means of transmission, or conveyance, of the terms and conditions upon which such messages would be sent, and the defendant became liable in case of — 290 — error or accident in the transmission or conveyance. By writing the message under it, and signing and delivering the same for transmission, the party accepted the proposition, and it became an agreement, binding upon the defendant, only according to the terms and conditions specified in its proposition. That such is the legal effect of the arrangement, under which the message in this case was received for transmission by the defendant, seems to me extremely clear. Under the date of the message and the name of the place from which it was sent, was printed in large clear type, “ Send the following message subject to the above conditions and agreement.” Directly under this the message was written and signed by the plaintiffs’ assignor. There is no pretense that the “ conditions and agreement” there referred to, were not plainly printed, or that there was the least difficulty in reading and understanding the terms proposed by the defendant.- There they stood, in clear plain print. First, a general statement, that, “ in order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought to he 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.” Following this is the tariff or rate charged for such repetítidn and comparison, as follows : “ Half the tariff price will he charged for - thus repeating and comparing.” Then follow the terms and conditions, in this language : “And it is hereby agreed between the signer or signers of this message that this company shall not be held responsible for errors or delays in the transmission or delivery of this message if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of the risk specified in this agreement, and that in case this message is not repeated, this company shall not he .held responsible for any error or delay in the transmission or delivery of the same beyond the amount paid for transmission, unless specially insured and — 291 — the amount of risk paid for and specified in this agreement at the time.” Here is no ambiguity whatever, but on the contrary the language is well chosen and the meaning anc^ import perfectly clear and obvious to the most indifferent on careless reader. The price for transmission, only, was paid. There was no request to have the message repeated, and nothing was paid, or offered, therefor, and -no insurance. The defendant is therefore exempt from all liability, for the mistake or error complained of, by the express terms of the agreement. It is stated, in the case made, that neither the person who signed the message, nor the plaintiffs, ever read the printed “conditions and agreement” thus subscribed. But it does! not follow from this, by any means, that they are not bound by the conditions. They might and should have been read. It was very gross carelessness and negligence not to read them before signing and delivering the message. Ho notice was given to the agents of the defendant, that the conditions and agreement to which the author and signer of the message had in terms agreed the same should be subject, had neglected to read them, and inform himself as to their import. The presumption, in -the absence of any notice, was, that he had read and understood the proposition he had thus accepted; and the defendant’s agents had the right to take it for granted that he had, and will be presumed to have done so, and to have sent in good faith the message upon the terms thus proposed and apparently accepted. The plaintiffs should not now be permitted to allege that their assignor, either wilfully shut his eyes and refused to see what was so plainly before him, or that he negligently omitted to use them for that purpose. To allow them now to do this, would operate as a fraud upon the defendant. It would enable one party through his own gross negligence and inattention, to create a liability against another in his own favor, where none was bargained for, or would have been, and which was expressly stipulated against. The principel of estoppel in $>ais applies in full — 292 — force against the plaintiffs’ claim. Their assignor, by his conduct, led the agents of the defendant to suppose and believe that he had agreed to the defendant’s propositions, and they can not now gainsay the apparent agreement. In Lewis v. The Great Western Railway Co., (5 H. and N. 867,) which was a case where the person delivering goods to a carrier filled up and signed a receiving note under a printed head of “ Conditions,” under which'were certain printed conditions, and which the party afterwards, in an action for the loss of the goods, claimed not to have read. Baron Bramwell said: It would be absurd to say that this document, which is partly in writing and partly in print and which was filled up, signed and made sensible by the plaintiff, was not binding upon him. A person who signs a paper like this must know that he signs it for some purpose, and when he gives it to the company must understand that it is to regulate the rights' which it explains.” I can not refrain from observing here, that the business in which the defendant is engaged, of transmitting ideas only from one point to another, by means of electricity operating upon an extended and insulated wire, and giving them expression at the remote point of delivery, by certain mechanical sounds, or by marks, or signs, indented, which represent words or single letters of the alphabet, is so radically and essentially different, not only in its nature and character, but in all its methods and agencies, from the business of transporting merchandize, and material substances, from place to place, by common carriers, that the peculiar and stringent rules by which the latter is controlled and regulated, can have very little just and proper application to the former, And all attempts heretofore made by courts to subject the two kinds of business to the same legal rules and liabilities will, in my judgment, sooner or later, have to be abandoned, as clumsy and undiscriminating efforts and contrivances to assimilate things which, have no natural relation or affinity whatever, and at best but a loose or mere fanciful resemblance. — 293 — The bearer of "written or printed documents and messages^ from one to another, if such was his business or employment, might very properly be called and held a common carrier; while it would obviously be little short of an absurdity to give that designation or character, to the bearer of mere verbal messages, delivered to him by mere signs or speech, to communicated in like manner. The former would have something which is, or might be, the subject of property, capable of being lost, stolen and 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.” But even if the defendant is held to be an ordinary common carrier, it had the right to limit its liability by express contract, as is now well settled. (Bissell v. New York Central Railroad Company, 25 N. Y. Rep. 442. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485.) In MacAndrew v. The Electric Telegraph Co., (17 Com. B. 3, 84 E. C. L.) it we£s held that a mere regulation of the corporation, similar to the one here in question, was a reasonable regulation under the act of 16 and 17 Vict. and shielded the corporation from liability for the mistake of sending the message to Southampton instead of Hull. And so in Camp v. The Western Union Telegraph Co., (1 Metc. Ky. R. 164,) it was held that a printed nótice similar to the conditions here, not in the form of an agreement,. was a reasonable regulation in behalf of the company, and binding upon the person delivering the message to be transmitted. Our statute providing “for the incorporation and regulation of,telegraph companies,” (Sess. L. of 1848, ch. 265, § 11,) makes it the duty of the owner of any telegraph line, doing business within this state, to receive dispatches, and on payment of their usual charges, for transmitting dispatches “as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith,” under a certain prescribed penalty. Thus the statute, it will be seen, recog — 294 — nizes the right of the owners of these lines of communication to establish “rules and regulations” for the transmission of communications delivered to he forwarded, in nearly the same terms as the act of 16 and 17 Vict. The legislature obviously never intended that these corporations, or persons, engaged in this novel, interesting and extraordinary business, should be placed upon the same footing in respect to liability with ordinary carriers of goods. [Monroe General Term, March 5, 1866. There is nó question here of gross negligence, against which the defendant could not, as carrier even, shield himself by contract. The tease states that the message was duly transmitted from the office at Palmyra, as written and delivered, “but by error of some of defendant’s operators, working between Palmyra and Sew York, the precise cause of which is unknown,” it was received in Hew York and delivered as an order to purchase $7000 in gold instead of $700, according to the message delivered and duly transmitted at Palmyra. In view of the nature of this business, and of the peculiarly delicate and subtle agencies and forces employed in carrying it on, it is impossible for the court to say, from this statement, that the error complained of, was the result of any negligence or inattention whatever on the part of the agents employed by the defendant. For aught we can see, it may have been produced by causes over which no person had any control. And these considerations show, most forcibly, the importance and necessity of allowing those carrying on this business, the right to make rules and regulations and contracts limiting and controlling, to a reasonable extent, the grounds and measure of their liability. For the foregoing reasons, I am of the opinion that the facts stated in the case made do not entitle the plaintiffs to any recovery. The defendant must therefore have judgment for its costs. Welles, E. D. Smith and Johnson, Justices.]