After the blank known as Form No. 2 was put in evidence the defendant's counsel was refused permission to read to the jury the rules and regulations printed upon said blank, and which stated the condition upon which all messages were taken by the company. In substance these regulations were to the effect that the company would not be liable for mistakes in the delivery of a message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, unless the sender should order the message telegraphed back to the originating office for comparison, and for that service one-half the regular rate was to be charged in addition to the amount received for sending the message.
The defendant testified that he had no knowledge of the terms of the conditions upon the Form No. 2. But there was ample evidence in the case from which the jury could have *Page 271 found that the plaintiff knew of these regulations, and that all messages received by the company were sent over its wires subject thereto.
If the jury had so found it would have also been permissible for them to find that the message in question was sent subject to such conditions, and that the defendant's liability was limited to the amount charged for sending the message.
A special and express contract is not necessary to limit the liability of the telegraph company for mistakes in the transmission of messages, and in this respect such corporations differ from common carriers. The reasons for this distinction are very clearly pointed out in Ellis v. American Tel. Co. (13 Allen, 226), and in the views there expressed we concur.
In that case the message was written upon one of the blanks of the corporation, upon which was printed the rules of the company limiting its liability.
In Clement v. Western Union Telegraph Co. (137 Mass. 463) the message was not written upon one of the defendant's blanks, but on its delivery to the defendant it was upon a plain piece of paper. The condition upon which defendant, by its rules, provided that messages should be sent over its line as set forth in the form of a blank in use by it were, however, known to the plaintiff's agent, such blanks having been frequently used by him, and it was accordingly held that a finding was warranted that the contract was entered into subject to the stipulations contained upon such blanks, and that the plaintiff could recover only the cost of the message.
We can see no conflict between this case and Gott v.Dinsmore (111 Mass. 45), cited in the prevailing opinion, the latter being an action against an express company for the loss of a trunk, and was disposed of by the application of rules of law applicable to common carriers.
In this state it has been decided that a telegraph company is not a common carrier, and is not subject to the peculiar liability of common carriers. (Breese v. U.S. Telegraph Co.,48 N.Y. 132; Schwartz v. A. P. Telegraph Co., 18 *Page 272 Hun, 158; Kiley v. Western Union Telegraph Co., 109 N.Y. 231. )
In the case last cited, in speaking of the regulations limiting the liability of the company unless the message was repeated, it was said "that a telegraph company has the right to exact such a stipulation from its customers is the settled law in this and most of the states of the union and in England.
"The authorities hold that telegraph companies are not under the obligation of common carriers. They have the right to make reasonable regulations for the transaction of their business and to protect themselves from liabilities which they would otherwise incur through the carelessness of their numerous agents and the mistakes and defaults incident to the transaction of their peculiar business.
"The stipulation printed in the blank in use in this case has frequently been under consideration in the courts and has always in this state and generally elsewhere been upheld as reasonable."
In that case the message was written upon one of the printed forms of the defendant and it was decided that the plaintiff would be held by the use of the blank and its delivery to the company, to have assented to the condition thereon although he might not have known their precise terms; and the Massachusetts case referred to and the Breeze case and Schwartz case were cited as authorities for such decision.
The authorities cited establish in our opinion the rule that a telegraph company may limit its liability for mistakes in the transmission of messages by reasonable regulations brought to the knowledge of its customers, and had the jury found, as they might have done upon the evidence in this case, that the plaintiff knew that such regulations had been established and that the defendant's liability was limited to the amount charged for sending the message unless it was ordered to be telegraphed back it would also have been permissible for them to find that he contracted with the defendant upon such condition. Whether the court would have been justified upon a finding of knowledge of these conditions upon plaintiff's part in holding *Page 273 as a matter of law that he must be deemed to have assented to the condition, it is unnecessary to here state, in view of the fact that the judgment is to be affirmed.
The views now expressed sufficiently indicate the difference existing between the majority and minority of the court.
It was material to a proper disposition of the case that the regulations printed upon the blank put in evidence should have been read to the jury and it was error for the court to exclude them and for such error the judgment should be reversed and a new trial granted.
All concur with FOLLETT, Ch. J., except BRADLEY and BROWN, JJ., dissenting and HAIGHT J., not sitting.
Judgment affirmed.