Wertz v. Western Union Telegraph Co.

ZaNE, C. J., The plaintiff delivered to the defendant, at its office in Ogden City, TJtah, to be transmitted to Eagle Eock, the following message: “To George H. Storer, Eagle Eock, Idaho: I will give one thousand cash, ball, six months. Answer." Which was delivered to the addressee at Eagle Eock in the following language: “I will give one hundred cases, bale six months. Answer." In consequence of the change, the evidence tended to show that the plaintiff lost a contract for the conveyance for $4,000 of real estate then worth $5,500. The message was written on a blank, on which was printed a condition that the company would not be liable for mistakes and delays in transmission, from negligence of its agents or otherwise, unless the message should be repeated, and requiring therefor an additional charge of one-half the regular rate. The message was not repeated. The jury returned a verdict under the charge of the court for the amount received for transmission, which the court, upon the motion of the plaintiff, set aside. From this order the defendant has appealed, and ass:gns the same as error. The cause of the failure to transmit the message as delivered is not expressly shown; but the probability is that the defendant’s agents knew precisely how the failure occurred. If they did not, the defendant had the best means of finding out. If it was not the company’s fault, it should have shown it. The presump [449] tion from the evidence is that the negligence of the: defendant’s agents caused the failure. This brings us to the question, did the contract exempt the defendant from liability for the negligence of its agents? If the senders of dispatches and telegraph companies were the only parties interested in such transactions, they, might make such contracts. The public has an interest in the telegraph service. The property employed belongs to the company, as well as the proceeds of the business; but the property is used and business is conducted for the accommodation and convenience of' '-he public. Public policy forbids contracts by telegraph companies exempting them from the consequences to others of the negligence of their agents in transmitting messages for their employers. Such liability promotes promptness, skill and care in that branch of business. Such companies may by contract exempt themselves from loss or damage to others not from their own fault. Notwithstanding such conditions, the companies are liable for ordinary negligence in transmitting dispatches. Telegraph Co. v. Griswold, 37 Ohio St. 301; Gillis v. Telegraph Co., (Vt.) 17 Atl. Rep. 736; Thompson v. Telegraph Co., (Wis.) 25 N. W. Rep. 789. In the case of Express Go. v. Caldwell, 21 Wall. 264, the court said: “ Telegraph companies, though not common carriers, are engaged in a business that is in its nature almost, if not quite, as important to the public as is that of carriers. Like common carriers, they cannot contract with their employers for exemption from liability for the consequen cees of their own negligence. But they may by such contracts, or by their rules and regulations brought to the knowledge of their employers, limit the measure of their responsibility to a reasonable extent. Whether their rules are reasonable or unreason [450] able must be determined with reference to public policy, precisely -as in case of a carrier.” And in Railroad Co. v. Lockwood, 17 Wall. 357, the same court held that a common carrier cannot lawfully stipulate for exemption from responsibility from the negligence of himself or his agents. If the plaintiff lost the difference between the contract price of the land and its actual value at the time because of the negligence of defendant’s agent, that difference was his damage. The decision of the court granting the new trial is affirmed, and the cause is remanded to the court below. ANDERSON, J., and Blaoeburn, J., concurred.