I concur in the affirmance of the judgment, but cannot escape the conviction that the judgment of affirmance has not been placed in the majority opinion on sound legal principles. As important questions are involved, which have not heretofore been considered by this Court, I venture to state my views of the law applicable to them.
After much doubt and discussion these propositions may be regarded recognized in the cases best considered by the Courts of this country.
First. A telegraph company does not hold the relation of agent or servant to either the sender or sendee of a message, for neither the sender nor the sendee have any control over its operation or management, either as principal or master. On the contrary, the relation of the telegraph company to both parties is that of an independent *Page 511 contractor engaged in a business to which attaches the duties and obligations of public service.
Second. As such independent contractor, engaged in a public service, a telegraph company is liable in tort to either sender or sendee, who suffers injury as the proximate result of its negligent failure to perform its public duty to deliver telegrams accurately and promptly.
Third. The telegraph company being an independent contractor, engaged in a public service in nowise subject to the control of those who deliver messages to it for transmission, it follows that the sender of a message does not undertake and is not under the duty to the sendee to see that the telegraph company delivers his message as written, but is bound by it only when transmitted as given by him to the telegraph company.
Under these rules either the sender or sendee has a right of action for loss incurred by him from the failure of the telegraph company to transmit as written a message accepting an offer to sell or to buy, or a business message of any kind, provided the evidence shows loss from some legal liability incurred or business design frustrated by the mistake.
In this case the Jenckes Spinning Company, on October 23, 1909, delivered to the defendant company for transmission to the plaintiff the following message, which was duly delivered to the plaintiff as written: "Can't get firm offer on 24's, but think we can land orders for hundred thousand pounds if you make 24 cents. Customer not inclined to buy more on this market. Wire quick." This was an inquiry if the plaintiff would authorize the Jenckes Spinning Company to sell for it on commission one hundred thousand pounds of yarn at twenty-four cents per pound. In reply the plaintiffs, on October 24, 1909, wrote and delivered to the defendant company a message in these words: "Telegram. Will book 24's single following in consideration of you at twenty-four and a half cents. Best can do." This *Page 512 telegram meant that the plaintiff would sell one hundred thousand pounds of yarn at twenty-four and one-half cents a pound. The defendant company, in transmitting this message, changed the price required from twenty-four and one-half cents to twenty-four cents.
The evidence tended to show that on receipt of the message, so altered, the Jenckes Spinning Company accepted an offer from a third party for the yarn on a basis of twenty-four cents a pound. The plaintiff, being advised of the mistake on the 26th of October by the message from the Jenckes Spinning Company accepting the offer it supposed to be made, immediately sent another message explaining the mistake and refusing to sell at twenty-four cents. Afterwards the plaintiff, on demand of the Jenckes Spinning Company, yielded its position and shipped the yarn at the price of twenty-four cents, and then brought this action for the difference of one-half cent per pound, alleging twenty-four and one-half cents to be the value of the yarn. The case turns, under the principles stated, on the question whether the plaintiff by reason of the mistake in the message incurred any legal liability resulting in loss, or was so frustrated in any business design that loss resulted.
There is no evidence whatever that the offer as written by plaintiff would have been accepted by the Jenckes Spinning Company, and, therefore, the plaintiff did not lose any bargain which it might have made but for the mistake. As we have endeavored to show, the plaintiff was not bound by the message as changed by the telegraph company when delivered, and, therefore, incurred no obligation to sell its yarn at twenty-four cents a pound. For these reasons it seems clear that the plaintiff had no cause of action in its own right against the telegraph company. The only party that incurred any liability and that could have suffered any loss from the mistake in the telegram was the Jenckes Spinning Company, and it alone had a right of action against the defendant. *Page 513
The principles I have stated seem to be so well founded in reason, and so convenient and just in practical application, that I shall not repeat the arguments in their support which have been so often stated. The following authorities support the conclusion reached: Pepper v. Telegraph Co.,87 Tenn. 554, 11 S.W. 783, 4 L.R.A. 660, 10 Am. St. Rep. 699; Shingleur v. Tel. Co., 72 Miss. 1030, 18 So. 425, 30 L.R.A. 444; Harrison v. W.U.T. Co. (Texas). 10 Am. Eng. Corp. Cases 600; Postal Co. v. Schaefer (Ky.). 62 S.W. 1119; Strong v. W.U. Tel. Co. (Idaho), 109 P. 917; Gray, Communication by Telegraph, sec. 104. In England and Scotland the view that a sender of a telegram is bound by the terms of the message negligently changed is repudiated.Henkel v. Pape, L.R. 6, Ex. 7; Verdin v. Robertson, 10 Ct. Ses. Cas., S. 3d series, 35. The following cases have been cited as supporting the opposite doctrine, but upon examination it will be found that in none of them was the exact point under consideration necessarily decided. Dunning v. Roberts, 35 Barb. 463; New York P.T. Co. v. Dryburg, 78 Am. Dec. 338; Durkee v. Vermont C.R. Co.,29 Vt. 127; Saveland v. Green, 140 Wis. 431; Ayer v. W.U.T. Co. (Mo.), 1 Am. St. 253. The only case clearly decided on the doctrine that the sender is absolutely bound by the terms of his message, though delivered in a changed condition, is Shotter v. W.U.T. Co., 71 Ga. 760.
The view of the majority of this Court is that when any mistake occurs in a telegraph message, in the course of a negotiation or transaction, the parties may themselves adjust the loss and say to whom the telegraph company shall be liable. The sufficient and conclusive answer to this proposition, which, as it seems to me, will lead to confusion and inconvenience, is found in the indisputable principle that the law of the land, and not the action of the interested parties, determines the person in whose favor a liability exists and may be asserted. As I understand the law, it declares the liability, if any, which the telegraph company is *Page 514 under for its mistake in this case to be in favor of the Jenckes Spinning Company alone; and by that liability the Jenckes Spinning Company was amply protected. It is not pretended that there was any attempt at assignment by the Jenckes Spinning Company to the plaintiff, or that the plaintiff was in anywise a trustee for the Jenckes Spinning Company.
It follows under the principles which I have endeavored to state that the Eureka Cotton Mills did not have any cause of action in its own right against the telegraph company, because it was bound only by the message as written by it and not by the altered message. I think, however, that the defendant should not be allowed to escape payment for the loss due to its negligence, and that such a result can be avoided and the judgment affirmed on the principle of subrogation. There can be no doubt under the evidence that the telegraph company was under a liability to the Jenckes Spinning Company to make good any loss incurred by it in consequence of any mistake in the message; and the Eureka Cotton Mills relieved it of having to pay this loss by shipping the yarn according to the telegram as delivered. The Jenckes Spinning Company cannot now recover of the telegraph company, because the Eureka Cotton Mills has relieved it of loss. It would be unjust to allow the telegraph company to escape liability altogether on account of the error of the parties as to their rights. It is true that the rule of law is well established that subrogation will not be allowed in favor of one whose legal rights are in no peril, but who comes in and pays out money gratuitously or as a mere volunteer. One who claims subrogation must show some form of compulsion arising from an actual or supposed peril to his own rights. Gadsden v. Brown, Speer's Equity 42.
The tendency now is to extend the doctrine of subrogation, and it is often applied in furtherance of justice to relieve those who have paid out money or incurred liability *Page 515 under a mistake. It is true that the plaintiff was under no real obligation to ship the yarn at twenty-four cents a pound; but the law on the subject in this State had never been declared, and the authorities showed a difference of opinion in other Courts. Under these conditions, it would be applying a very stringent rule to hold the plaintiff to be a mere volunteer in shipping the yarn and thus relieving the telegraph company of its liability to the Jenckes Spinning Company. In this particular case, because the law was unsettled, when the plaintiff relieved the Jenckes Spinning Company of its loss, the plaintiff should not be regarded a mere volunteer and should be allowed to claim subrogation to the rights of the Jenckes Spinning Company, and hold its judgment against the defendant on that ground.