Breese v. United States Telegraph Co.

It is not very important to determine whether telegraph companies are common carriers or not, because I find no decision, entitled to any weight as authority, which holds that the common-law liability of common carriers attaches to them. They may in one sense be called common carriers, as they are engaged in a public employment, and are bound to transmit, for all persons, messages delivered to them for that purpose. (Sherman Redfield on Neg., *Page 141 606.) But if we call them common carriers in this sense, it does not follow that they become insurers, like the common carriers of goods. (Sherman Redfield on Neg., 608; Redfield on Car., 408.)

The liability of telegraph companies is regulated by contract and the nature of their public employment. In the absence of any special contract limiting or regulating their liability, they do not insure the safe and accurate transmission of messages, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and if they fail in such care and diligence, they become responsible. But while they are bound to transmit all messages delivered to them, they have the right to make reasonable rules and regulations for the conduct of their business. They can thus limit their liability for mistake, not occasioned by gross negligence or willful misconduct, and this they can do by notice brought home to the sender of the message, or by special contract entered into with him. (Redfield on Carriers, 405; McAndrew v. Electric Telegraph Co., 33 Eng. L. Eq., 180; Birney v. New York Washington Tel. Co.,18 Md., 341; N.Y. Washington Printing Tel. Co. v. Dryburg, 35 Penn., 298; Ellis v. American Tel. Co., 13 Allen, 226;Western Union Tel. Co. v. Carew, 15 Mich., 525; Wannan v.Western Union Tel. Co., 37 Mo., 472; Camp v. West. UnionTel. Co., 1 Metcalfe [Ky.] 164.)

Here Cuyler wrote the message upon a blank, which had been furnished by the company, specifying that the company would not be held responsible for any error in the transmission of the message, unless it was repeated. He had had the blanks in his possession for some time, and had had abundant opportunity to read them. The blanks contained the terms upon which the company solicited and would accept his business, and when the message was written upon one of them and brought to the office of the company, its agent had the right to assume and believe that he accepted the terms, and assented to and understood the agreement. In the absence *Page 142 of any proof that the blanks were printed in such small type, or otherwise, as to mislead, or that Cuyler was so illiterate that he could not read, he must be presumed to have understood the contents of the blank, and upon the ordinary principle applicable to the doctrine of estoppel in pais, he must be held estopped from denying or disputing the agreement. (Lewis v. GreatWestern Railway Co., 5 Hurlstone N., 867; Grace v. Adams,100 Mass., 505; Wolf v. Western Union Tel. Co., 62 Pa., 87.) This would not be so if the blank had been delivered to Cuyler at the time he wrote the message upon it, and he had no opportunity to read it, and to the knowledge of the telegraph operator had not read it. In such case there would have been no room for the application of the doctrine of estoppel, and no reason for indulging in presumptions.

We should reach the same conclusion if we held that defendant was a common carrier, with all the liabilities which attach to such carriers at common law; for it is well settled in this State that common carriers can contract for exemption from their common-law responsibility, as to everything, certainly, except their gross negligence or willful misconduct. (Bissell v. N YCent. R.R., 25 N.Y., 442; French v. Buffalo, N.Y. and ErieR.R. Co., 4 Keyes, 111.)

I am, therefore, of the opinion that the judgment should be affirmed, with costs.

All concur.

Judgment affirmed. *Page 143