E. P. Cowen Lumber Co. v. Western Union Telegraph Co.

Ellison, J. The stipulation that the message-shall be repeated in order to render the telegraph company liable for a mistake is a stipulation which has been held by the courts to be reasonable and will shield the company from damages in excess of the sum agreed upon in the contract between the parties as it is [263] evidenced by tbe printed matter upon the blanks such as were used in this case. Wann v. Tel. Co., 37 Mo. 472; Jones v. Tel. Co., 18 Fed. Rep. 717, 719; Becker v. Tel. Co., 11 Neb. 87, 90; Lassiter v. Tel. Co., 89 N. C. 334, 337; Passmore v. Tel. Co., 78 Pa. St. 238; Tel. Co. v. Neill, 57 Tex. 283, 291; Aiken v. Tel. Co., 5 S. C. 358, 371; Kiley v. Tel. Co., 109 N. Y. 231, 236; Grinnell v. Tel. Co., 113 Mass. 485; Clement v. Tel. Co., 137 Mass. 463, 466; Redpath v. Tel Co., 112 Mass. 71, 73; Ellis v. Tel. Co., 13 Allen, 226, 236; Camp v. Tel. Co., 1 Metc. (Ky.) 164, 168; Breese v. Tel. Co., 48 N. Y. 132, 139; Tel. Co. v. Buchanan, 35 Ind. 429, 432; Tel. Co. v. Carew, 15 Mich. 525, 535. The telegraph company can not excuse itself from negligence even by contract, but mere proof that the dispatch was not delivered to the addressee as delivered by the sender to the sending office will not be evidence sufficient to authorize a recovery from the company of more than was stipulated in the contract, which in this case was forty cents, the price paid for sending the message. That such evidence shows an error or mistake must be conceded, but in view of the nature of the business of a telegraph company and its peculiar instru-. mentalities for public service; instrumentalities which are so frequently, as well as unaccountably, beyond the control of human agencies, such evidence is not sufficient to make out a case of negligence, willful misconduct, or fraud upon the part of the company. We are not deciding a case where the mistake or error or other fault of the company was one which the repeating of a dispatch could not have prevented. This case is fully within the reason of the regulation requiring a repetition of the dispatch; for, if it had been repeated, the error would almost certainly have been detected. We are of the opinion that plain tiff’s recovery should be limited to the sum he paid for the dispatch, [264] and the judgment will be reversed and cause remanded with directions to enter judgment for forty cents. All concur.