This action was brought by the appellants, as plaintiffs, to recover damages in the sum of $581.17, alleged to have been sustained by reason of an error in the transmission of a telegraphic message delivered by appellants to respondents at the town of Soda Springs, Idaho, on or about March 6, 1907, to be transmitted’ to parties in Denver, Colo.
The principal issue made by the pleadings was whether the defendant was liable because of a mistake made in the transmission of said telegram. The action was tried by the court and a jury, and at the close of plaintiffs’ evidence, counsel for defendant moved for a nonsuit, which motion was granted by the court and judgment of dismissal was entered. The appeal is from said order and the judgment.
The following facts, among others, appear from the record:
The telegraphic message was written upon one of the respondent company’s telegraph blanks with all the printed provisions upon said blanks. Said telegraph blank contained *393the following matter, to wit: “Western Union Telegraph Company, Incorporated.Send the following message subject to the terms on back hereof, which are hereby agreed to.” The following is the telegram written thereon:
“Soda Springs, Idaho, March 6th, 1907.
“To Colorado Live Stock & Commission Co.,
Denver Stock Yards, Denver, Colorado.
‘'‘Will you honor draft of W. L. White on you in payment of 84 head of steers at three ninety-five per hundred two per cent shrink weighed here.
“STRONG & STARK.”
On the face of said telegram the following printed matter occurred: “Read the notice and agreement on the back,” and on the back of said telegraph blank appears the following: “All Messages Taken By This Company Are Subject to the Following Terms:
“To guard against mistakes or delays, the' sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half' the regular rate is charged in addition. It is agreed between the sender of the following message and this Company, that-said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, beyond the amount received for sending the-same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured, nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this Company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other Company when necessary to reach its destination.
“Correctness in the transmission of a message to any point on the lines of this Company can be insured by contract in writing, stating agreed amount of risk, and payment of premiums thereon, at the following rates, in addition to the *394usual charge for repeated messages, viz., one per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No employee of the Compahy is authorized to vary the foregoing.
“No responsibility regarding messages attaches to this Company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by ■one of the Company’s messengers, he acts for that purpose as the agent of the sender.
“Messages will be delivered free within the established free •delivery limits of the terminal office. , For delivery at a greater distance, a special charge will be made to cover the costs of •such delivery.
“The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the ■Company for transmission.
“ROBERT C. CLOWRY,
“President and General Manager.”
Said telegram was introduced in evidence on the trial and ■one of the plaintiffs testified as follows:
“No, sir, at the time I delivered the telegram to the defendant, I did not ask that it be repeated; I have reference to plaintiffs’ exhibit ‘A’; I did not request that it be telegraphed back for comparison. No, I did not offer the telegraph company any additional compensation for such purpose. .... We were negotiating the sale with one W. L. White, who was agent for the Colorado Livestock & Commission Company; he was acting as their agent; we agreed to sell the company quite a number of cattle,! beef steers. I do not remember the weight of the steers. I have got it down; there were 84 head of steers, they weighed something near 1,000 pounds; we at this time agreed with this agent as to the price per hundred-weight, that is to say, $3.95 per cwt., this was net with two per cent shrink; I agreed with the agent on the price for the cattle and then went and sent a message to the company to find out whether the agent was responsible or not.”
*395In response to said telegram, the following reply was received:
“Denver, Colorado, ,3, 6, 1907.
■“To Strong & Stark, Soda Springs, Idaho.
“Will honor draft as per telegram if cattle are billed to us.
“COLORADO LIVESTOCK & COMMISSION CO.”
It further appears from the testimony that the telegram ■when delivered to the commission company read $3.25 per hundred-weight, making a difference of seventy cents per Kundred-weight between the offer and the acceptance, and •that was caused by the mistake made by the respondent in transmitting the telegram from Soda Springs to Denver; and that the steers referred to were delivered to the said W. L. White and shipped by him to the Colorado Livestock & Commission Co. at Denver and that said commission company paid for them at the rate of $3.25 per hundred-weight and refused to pay $3.95 per hundred, as stated in the telegram as delivered to the telegraph company for transmission.
Upon that state of facts, the question is presented whether the telegraph company is liable for the difference of seventy •cents per hundred-weight.
The respondent does not deny that a mistake was made, but contends that it is not liable, for the reason that the telegraph blank contained a certain printed stipulation to the effect that the telegraph company should not be liable for a mistake or delay in transmission or delivery of the message, unless the sender ordered it repeated and paid one-half of the regular charge in addition to the regular charge for sending such message, and it is admitted by the appellants that they did not request the respondent to repeat said message.
There appears to be considerable conflict in the various decisions upon the question of the validity of the printed stipulation upon a telegraph blank limiting the liability of the company for mistakes and delays in transmission of messages. In some of the decisions it is held that such stipulations are valid, and in others, that they are not valid and are contrary to public policy.
*396Kemp v. Western Union Tel. Co., 28 Neb. 661, 26 Am. St. 663, 44 N. W. 1064, held that such stipulations are invalid under a statute which expressly declares that they shall not be binding. In that case there was a mistake made in transmitting the telegram. “8 o’clock” was written in the telegram delivered for transmission, and when delivered it read ”10 o’clock.” The court held, under see. 12 of an act relating to telegraph companies, that said company was “liable for the nondelivery of dispatches intrusted to its care and for all mistakes in transmitting messages made by any person in its employ.”
In Western Union Tel. Co. v. Lowrey, 32 Neb. 732, 49 N. W. 707, the court held under the provisions of said section 12, supra, that the plaintiff was entitled to damages for delay in delivering an unrepeated message. It thus appears that the legislature of the state of Nebraska has considered that such stipulations printed on a telegraph message, relieving the company of liability for mistakes in transmitting or delay in delivering messages, were contrary to public policy and settled the matter by enacting a law to that effect.
In Mississippi, Kentucky and Oklahoma, telegraph companies are by law declared to be common carriers, and the supreme courts of those states held that said stipulation above quoted is invalid and unavailing as a defense under the constitution and statute which declared telegraph companies to be common carriers in their line of business and subject to liability as such. (Postal Tel. & C. Co. v. Wells, 82 Miss. 733, 35 So. 190; W. U. Tel. Co. v. Eubanks, 100 Ky. 591, 66 Am. St. 361, 38 S. W. 1068, 36 L. R. A. 711; Blackwell M. & E. Co. v. Western Union Co., 17 Okl. 376, 89 Pac. 235, 10 Ann. Cas. 855.)
It was held in the Oklahoma case that telegraph companies were liable for the full 'amount of the loss sustained by reason of their failure properly to deliver messages within a reasonable time, notwithstanding an express stipulation in the contract of carriage that such company shall not be liable for mistakes or delays in the transmission or delivery or for nondelivery of unrepeated messages, beyond the amount received *397for sending the same, and that construed in the light of the statutes of Oklahoma, such stipulation is unreasonable and contrary to public policy, and therefore void. In that case the negligence consisted in the unreasonable delay in the delivery of a message.
These decisions proceed upon the theory that telegraph companies are common carriers, made so by the provisions of the constitutions or the statutes in those states.
We have no constitutional or statutory provision in this state that such stipulation is void or that telegraph companies are common carriers. Then the question is presented: What should be the rule in this state as to such rules and regulations in the absence of any constitutional or statutory provisions?
It is contended by counsel for respondent that the great weight of authority upholds the right of the telegraph company to adopt reasonable rules and regulations to govern the sending of messages, and to adopt rules and regulations such as the stipulation under consideration, fixing the liability of the company for delay or mistakes in the transmission or delivery of messages to the sum paid for sending the message; and that said stipulation is a reasonable one. In support of this contention, they cite, with other decisions, Primrose v. W. V. Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. ed. 883. In that opinion the court declares that telegraph companies are not common carriers except in so far as they are obliged to serve all alike, and that they may protect themselves by stipulations similar to those under consideration in this ease. The court said:
“By the regulation now in question, the telegraph company has not undertaken to wholly exempt itself from liability for negligence; but only to require the sender of the message to have it repeated, and pay half as much again as- the usual price, in order to hold the company liable for mistakes or delays in transmitting or delivering or for nondelivery of a message, whether happening by negligence of its servants or otherwise.”
*398That ©ase involved the sending of a message which was in cipher and intelligible only to the sender and his agent to whom it was addressed. The court there holds that telegraph companies resemble railroad companies and other common carriers, in that they are instruments of commerce and in that they exercise a public employment and are therefore bound to serve all customers alike without discrimination;, that they have a duty to the public, but that they are not. common carriers, that their duties are different and are performed in different ways, that they are not subject to the same liabilities, and that, like common carriers, they cannot contract with their employers for exemption for liabilities-occasioned by their own negligence, but that 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, and whether their rules, are reasonable or unreasonable must be determined with reference to public policy precisely as in the case of a carrier;, citing Southern Express Co. v. Caldwell, 88 U. S. 264 (21 Wall. 264), 22 L. ed. 556.
In the Primrose case, the court referred to the fact that', the telegram did not impart to the telegraph company an important business transaction, and did not indicate that if it were not transmitted correctly pecuniary loss might be incurred. In the case at bar, where it appears that the telegram was legibly written and delivered to the operator, it did impart to the telegraph company that it concerned an important business transaction, and imparted notice to the company to-the effect that pecuniary loss might result in case a mistake-was made in correctly stating the price per hundred-weight' of the cattle referred to. It was not like a cipher telegram that was “nonsense” to the operator. In the Primrose case-stress is laid upon the fact that the telegram there involved was in cipher and unintelligible. The only mistake made in that telegram was the change of an “a” to a “u,” the telegraphic character for an “a” being a dot and a dash, and. for “u,” two dots and a dash. In the telegram involved in the case at bar, the word “ninety” was changed to “twenty.”' *399The telegraphic characters for the word “ninety” are as follows: .. -. . - .. .. and the word for-“twenty” as follows: - .— . -. - ....
It will be observed from the foregoing that those words, when written out in telegraphic characters are very different, and if the figures were used in sending said telegram, the-characters for the figure “9” are -..- and for- the figure-“2” and it was carelessness and negligence for am operator to either send or receive the word “twenty” for the: word “ninety” in either figures or words.
Counsel also cites Camp v. Western Union Tel. Co., 1 Met. (Ky.), 164, 71 Am. Dec. 461, where it was held that a person desiring to send a message is admonished by the notice printed! across said message that to guard against a mistake in transmission it should be repeated. The court said: “He is also notified that if a mistake occur, the company will not be responsible for it unless the message be repeated. There is nothing unreasonable in this condition.”
Counsel also cites Western Union Tel. Co. v. Carew, 15 Mich. 525. The court there holds that it would be extremely unjust, considering the small amount of compensation for sending a message, and would effectually put an end to this method of correspondence, to hold them liable for the entire correctness of all messages transmitted or to hold them responsible for all damages which may accrue from an error, especially when only a single transmission, without repeating, is relied upon or paid for; or to deny them all power to make rules and regulations to limit their liability even in the ease of repeated messages, and the court says it would be equally unreasonable to require them to repeat a message when they are paid only for a single transmission. Some of the courts have based their decisions on the rule laid down in those eases.
The last two decisions were rendered, one in 1858 and the other in 1867, when telegraphy was in its infancy and in a very imperfect, uncertain condition, and messages could not be sent or received with the correctness and accuracy with which they are sent in the present day with the improved telegraphic machinery and appliances and greater expertnesst *400of operators. The court in the latter case refers to the small amount paid for the transmission of a message, and it was evidently in the mind of the court that telegraph companies were poor, struggling corporations; but experience and history now bears out the statement that telegraph companies have become immensely rich on the “small stipend” charged for sending messages, which would indicate that they are charging a great deal more than it actually costs to transmit such messages and to give them a fair return upon the capital invested in the business. The Michigan court, it seems, was mistaken when it suggested that to hold them liable “would effectually put an end to this method of correspondence,” as it is shown that a number of the states have held telegraph companies liable and it has not “effectually put an end to this method of correspondence,” as it is used a great deal more at the present time than it ever was before, regardless of the courts holding it liable for damages arising because of its negligence. Telegraphy has been so perfected with its improved machinery, instruments, equipment and appliances that with competent and careful operators telegrams may be sent with accuracy. That being true, telegraph companies should be held to a higher degree of care, fidelity and diligence than could reasonably have béen required of them at the dates when the last above cited opinions were rendered, and they should be held to a higher degree of care in sending and delivering telegrams that involve the property rights of either the sender or receiver than perhaps they would be in social telegrams, or telegrams that do not involve property rights and others of particular interest to the sender or receiver. While, under the decision of the United States supreme court above cited, a telegraph company is held not to be a common carrier, it is, however, a corporation doing business for the public, and must be held liable for damages arising from its own carelessness and negligence or the carelessness and negligence of its agents. While it may make rules and regulations in regard to the conduct of its business, the reasonableness or unreasonableness of such rules must be determined with reference to public policy, precisely as in the *401case of common carriers. Public policy is that principle of law under which freedom of contract or private dealing is restricted by law for the good of the community — the public good. (32 Cyc. 1251.) A stipulation in a contract which exempts the corporation from damages for its own negligence is void when applied to a telegraph company as well as when applied to a common carrier.
In Western Union Tel. Co. v. Eubanks, 100 Ky. 591, 66 Am. St. 361, 38 S. W. 1068, 36 L. R. A. 711, the supreme court of that state has clearly distinguished, if not reversed, the doctrine laid down in Camp v. Western Union Tel. Co. (Ky.), 1 Met. 164, 71 Am. Dec. 461, and there holds that a stipulation such as the one under consideration in this case, providing that unless the message is repeated the company is not liable, is invalid, and says:
“It is true that in Camp v. this appellant (Western Union Tel. Co.), the same or a similar stipulation as the one in question as to the repetition of messages was held to be valid, but that case was decided in 1858, and before the adoption of the present constitution.”
In the Eubanks case the decision of the supreme court in Primrose v. Western Union, supra, is referred to in the following manner by the court:
“It is true that that decision upheld the stipulation in question as well as the stipulation in regard to cipher messages and obscure messages, but it is also true that Chief Justice Fuller and Mr. Justice Harlan dissented and Mr. Justice White took no part in the decision. It will also be seen from the opinion that many courts of last resort had decided otherwise as to such stipulations,” and then cites many other authorities holding that such stipulations are invalid.
In Smith v. Western Union Tel. Co., 83 Ky. 112, 4 Am St. 126, the court, in discussing the obligation of telegraph companies, said:
“It is, however, a public agent; it exercises a qwasi-publie employment; carefulness and .fidelity are essentials to its character as a public servant, and public policy forbids that it should abdicate as to the public by contract with the in*402dividual. He is but one of millions; his business will perhaps not admit of delay or contest in the courts, and he is ex necessitate compelled to submit to any terms which the company might see fit to impose; but the law should not uphold a contract under which a public agent seeks to shelter itself from the consequences of its own wrong and neglect. Its liability for neglect is not founded purely upon contract. It is chartered for public purposes; extraordinary powers are, therefore, conferred upon it; it has the power of eminent domain; if it did not serve the public, it could not constitutionally lay a wire over a man’s land without his consent; and by reason of the gift of these privileges it is required to receive and transmit messages, and is liable for neglect, independent of any express contract. The public are compelled to rely absolutely upon the care and diligence of the company in the transaction of this business so wonderful in its growth, so necessary to the life of commerce and useful beyond estimate ; and if it relies upon a notice or contract to restrict its liability, it must be one not in violation of public policy; and in view of the vast interests committed to a telegraph company, the extraordinary powers given it and the virtual monopoly it almost necessarily enjoys, the court should compel it nolens nolens to perform the corresponding duties of diligence and good faith to the public thereby created. Any other rule would defeat the very purposes for which these companies are chartered, to wit: the safe and speedy transmission of messages for the public; and while they may reasonably restrict their liability, yet they cannot do so as against their own negligence. They undertake to exercise a public employment which in many respects is analogous to that of a common carrier, and they must therefore bring to it that degree of skill and care which a prudent man would under the circumstances exercise in his own affairs; and any stipulation by which they undertake to relieve themselves from this duty or to restrict their liability for its nonuse is forbidden by the demands of a sound public policy. To hold otherwise would arm them with a very dangerous power and leave the public comparatively remediless.”
*403As bolding or tending to bold that a telegraph company is liable for misconduct or negligence, regardless of said stipulation, see Western Union Tel. Co. v. Henderson, 89 Ala. 510, 18 Am. St. 148, 7 So. 419; Western Union Tel. Co. v. Short, 53 Ark. 434, 14 S. W. 649, 9 L. R. A. 744; Western Union Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; Western Union Tel. Co. v. Tyler, 74 Ill. 168, 24 Am. Rep. 279; Western Union Tel. Co. v. Jones, 95 Ind. 228, 48 Am. Rep. 713; Sweatland v. Ill. & Miss. Tel. Co., 27 Iowa, 433, 1 Am. Rep. 285; Eubank v. Western Union Tel. Co., 100 Ky. 591, 66 Am. St. 361, 38 S. W. 1068, 36 L. R. A. 711; Ayer v. Western Union Tel. Co., 79 Me. 493, 1 Am. St. 353, 10 Atl. 495; United States Tel. Co. v. Gildersleeve, 29 Md. 232, 96 Am. Dec. 519; Shaw v. Postal Tel. Cable Co., 79 Miss. 670, 89 Am. St. 666, 31 So. 222, 56 L. R. A. 486; Reed v. Western Union Tel. Co., 135 Mo. 661, 58 Am. St. 609, 37 S. W. 904, 34 L. R. A. 492; Kemp v. Western Union Tel. Co., 28 Neb. 661, 26 Am. St. 363, 44 N. W. 1064; Western Union Tel. Co. v. Longwill, 5 N. M. 308, 21 Pac. 339; Postal Tel. Cable Co. v. Robertson, 36 Misc. Rep. 785, 74 N. Y. Supp. 876; Brown v. Postal Tel. Co., 111 N. C. 187, 32 Am. St. 793, 16 S. E. 179, 17 L. R. A. 648; Telegraph Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Aiken v. Western Union Tel. Co., 5 S. C. 358, 1 Am. Elec. Cas. 121; Kirby v. Western Union Tel. Co., 7 S. D. 623, 65 N. W. 37, 30 L. R. A. 612; Western Union Tel. Co. v. Mellon, 100 Tenn. 429, 45 S. W. 443; Wertz v. Western Union Tel. Co., 8 Utah, 499, 33 Pac. 136; Gillis v. Western Union Tel. Co., 61 Vt. 461, 15 Am. St. 917, 17 Atl. 736, 4 L. R. A. 611; Western Union Tel. Co. v. Reynolds, 77 Va. 173, 46 Am. Rep. 715; Beatty Lumber Co. v. Western Union Tel. Co., 52 W. Va. 410, 44 S. E. 309; Thompson v. Western Union Tel. Co., 64 Wis. 531, 54 Am. Rep. 644, 25 N. W. 789; Western Union Tel. Co. v. Cook, 61 Fed. 624, 9 C. C. A. 680; Gt. Northwestern Tel. Co. v. Lawrence, 1 Rapports Judic, de Quebec, 1; also, Joyce on Electric Law, 2d ed., sees. 681, 683, 684, 685, 689, 692, 701, 702, 707, 712.
In summarizing tbe diversity of decisions as to sueb stipulations by telegraph companies that text-writer (Joyce) in sec. 716, says:
*404“It is evident from the preceding decisions that it .is impossible to formulate any other than, what might well be called a composite rule and inasmuch as the state courts are showing a more decided inclination to adhere to their own precedents, it is doubtful whether as against such precedents a court would follow decisions of other state courts even though they might be deemed to constitute what has been called the weight of authority.”
Owing to the fact that many of the decisions which hold that the stipulation under consideration is valid and binding are based upon the decisions of Camp v. Western Union Tel. Co., supra, decided in 1858, and Western Union Tel. Co. v. Carew, supra, which was decided in 1867, and long before telegraphy had reached its present state of efficiency and .accuracy, this court is not inclined to follow that line of decisions. Since telegraph companies are public agents, exercising a g-uasi-publie employment, carefulness and fidelity are •essentials to its character as a public servant, and public policy forbids that it should be released by its own rules or regulations from damages occasioned by its carelessness and negligence. It is chartered for public purposes; it has the power •of eminent domain; the public are compelled to rely absolutely on the care and diligence of the company in the transmission of messages, and by reason of those powers and the relation it sustains to the public, it is obligated to perform the duties it is chartered to perform with the care, skill and diligence that a prudent man would, under like circumstances, exercise in his own affairs, and if it fails to do so, it is liable in damages for such failure, and cannot restrict its liability by rule or regulation which attempts to excuse it for its own negligence. It is a public servant, and must serve the people impartially, carefully and in good -faith. We do not hold that the company is an insurer against mistakes or delays .arising from causes beyond its own control, but it is liable for damages arising from the use of defective instruments or want of skill or care on the part of operators. A stipulation exempting it from liability for its own negligence would be •contrary to public policy.
*405Some of the authorities hold that a telegraph company may adopt rules and regulations which legally exempt it from “ordinary negligence,” but that they cannot make such rules or regulations that will shield or protect them from damages arising from ‘ ‘ gross negligence. ’ ’ They draw a distinction between “ordinary negligence” and “gross negligence.” Bouvier, in his Law Dictionary, defines negligence to be “ The omission to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” Mr. English, in his Law Dictionary, defines negligence to be “The omission to exercise proper care and caution; failure to perform a duty or doing it improperly, and the facts in such cases must decide the degree of negligence.” Thompson on Electricity, see. 186, referring to the different degrees of negligence, says? “Modern judicial opinion is drifting toward the view that a división of care and correlatively of negligence into degrees is a matter too subtle and refined for the ordinary purpose of justice, and it has been well said that a gross negligence is-nothing more than negligence with an epithet.”
The term “gross negligence” undoubtedly describes colloquially a greater degree of carelessness than the term “ordinary negligence,” but the legal significance of the term is difficult to ascertain. In one Mew, “gross negligence” is deemed equivalent in law to fraud or to intentional wrong; in another, it is deemed exactly synonymous with ordinary-negligence ; while in a third it is deemed to be applicable to-those degrees- of carelessness, whatever they may be, existent between ordinary negligence and wilful negligence or fraud.. (Sec. 37, Gray on Communication by Telegraph.) And in-sec. 38, the author says: “The doctrine that in a legal contemplation there is no distinction between gross negligence- and ordinary negligence has certainly not been adopted uniformly by the courts which have considered negligence on the-part of the telegraph company. ’ ’
In certain cases “gross negligence” is evidently deemed the equivalent in legal contemplation of “-ordinary negli*406gence.” In many cases, however, “gross negligence” is used to denote a degree of carelessness greater'.than the degree implied by “ordinary negligence,” and one of which the law takes distinct legal cognizance. It is thus nsed in those eases in which telegraph companies are permitted to limit their liability for losses occurring through their ordinary negligence, but at the same time are not permitted to limit their liability for losses occurring through their gross negligence. Unfortunately, in only one of these cases is an attempt made to define gross negligence or a test offered to distinguish it from either ordinary negligence or fraud. In the rest of these cases, therefore, it is impossible to determine whether gross negligence is deemed to be synonymous with wilful negligence or fraud, or to be applicable only to those degrees of carelessness, whatever they may be, existent between wilful and ordinary negligence.
In the 4th volume of “Words and Phrases,” we find the following definitions of “gross negligence” supported by the many authorities cited there: “Gross negligence is the want of even a slight care and diligence.” And again “Gross negligence is the want of that diligence that even careless men are accustomed to exercise.” And, “Gross negligence is the want of that care which every man of common sense, however inattentive he may be, takes of his own property, and is nothing more than negligence with the addition of a vituperative epithet.” .
We shall not undertake to add anything to the numerous definitions cited of “negligence” and “gross negligence,” but do hold that if damages occur by reason of mistakes made because of defective instruments or incompetent operators, or through carelessness or negligence that with ordinary care might have been avoided, the company is liable. And where it appears that the word “ninety” was erroneously transa mitted “twenty,” the company is liable unless it can show ■that the mistake was made under circumstances and conditions over which it had no control. Telegraph companies must therefore be held to a greater degree of care than is ^included in “wilful negligence” or “fraud.”
*407It is contended by counsel for respondent that' the complaint does not allege negligence on tbe part of the company in making the mistake in sending said telegram, and for that reason does not state a cause of' action. The sufficiency of the complaint, however, was not challenged by demurrer or upon the admissibility of evidence and was only raised upon the motion for a nonsuit. This, however, is not a ground for a nonsuit.. Sec. 4354, Rev. Codes, provides that an action may be dismissed or a judgment of nonsuit entered on five separate grounds. None of the first four mentioned applies to the case at bar, but the fifth is applicable and provides that the court upon motion may grant a nonsuit if plaintiff fails to prove a sufficient case for the jury. It was evidently on that ground that the court sustained the motion for a nonsuit and entered a judgment of dismissal, as it is virtually conceded the court held that said stipulation was valid. This court holds that the evidence introduced on the trial was sufficient to show negligence; in other words, to make a prima facie case, and as the judgment must be reversed and the cause remanded, the plaintiffs should be permitted to amend their complaint, if they desire to do so. If application had been made at the close of the trial to amend the complaint to conform to the proof, the court no doubt would have granted the application, as under the views expressed in this opinion, the plaintiffs made a prima facie case by the evidence introduced. Where a telegraph company fails to transmit a message correctly, the proof of that fact is prima facie evidence of the company’s negligence; so proof by the plaintiff of the contract, which may be implied by the delivery of the message to be transmitted and its acceptance by the defendant’s agent, and of the breach, makes out a prima facie case, and the plaintiff need not go further and show any further negligence or omission of the defendant. (Jones on Telegraph and Telephone Companies, sec. 36.) If the failure was not the result of negligence, the means of showing that fact is almost invariably within the exclusive possession of the company, and for the courts to require the sender to prove the negligence, after showing the mistake, would be in many *408cases to require an impossibility, not infrequently resulting in enabling the company to evade a just liability. (See. 36, supra, and authorities there cited.)
We conclude that when the sender delivers a message to-the agent of a telegraph company for transmission and it is received by him for transmission, it is clearly implied and understood that the message must be correctly sent, and upon proof that it was not correctly sent, a prima facia ease is made. Then -if the mistake was not occasioned by incompetent operators or defective instruments, and was occasioned by the-elements or some matter or thing over which the company had no control, it devolves upon the company to prove that as a matter of defense. Therefore, when the plaintiff proved that said message was delivered to the agents of the company for transmission and that they accepted it and made a mistake in its transmission, the plaintiff had made a prima facie case- and the court erred in granting a nonsuit and entering a judgment of dismissal.
It is also contended by counsel for respondent that the-agreement for the sale of the cattle was made with the agent-of the Colorado Livestock & Commission Co., and that by reason of that contract the steers were shipped to said commission company, and that fact would 'render said company liable for the balance due on said steers at the rate of $3.95 per hundred-weight. There is nothing in that contention, for the reason that the appellants did not close the contract for the sale with White, but closed it with the commission company. The negotiation for the sale of the steers was begun with White, but appellants would not sell them until they communicated with the company by telegraph. In the reply telegram, the company stated that they would honor the draft if the cattle were billed to them. The contract was made-directly with the commission company and not with White, and on that state of facts the commission company could not be compelled to pay a greater price than it had agreed to-pay as per its reply telegram.
(June 28, 1910.) [109 Pac. 917.] Telegraph Company not Agent op Sender — Telegraph Company.. Independent Principal — Negligent Error in Transmission opa Message — Measure op Damage. (Syllabus by the court on rebearing.) 1. A sender of a telegraphic message does not constitute,, the „ telegraph company his agent and is not bound to the receiver, of - the message by the terms of the message as negligently changed • or altered by the company. 2. A telegraph company is a public service corporation, engaged - in a publie utility, and in receiving, transmitting, and delivering . messages should be treated as an independent principal or contract- . ing party, and be held liable both in contract and tort the,, same as other principals. 3. Where S. & S. sent a telegram to C. L. S. & C. Co., inquiring . if the company would honor draft in payment for 84 head of steers at $3.95 per hundred, and the telegraph company negligently changed or altered the message so that when received at its destination and delivered to the sendee it read $.3.25 instead of $3.95, and the stoek was shipped and C. L. S. & C. Co. paid therefor at the rate of $3.25, if S. & S. acted prudently and with due diligence after discovering the mistake, so as to minimize the damage and loss, the measure of damage which they will be entitled to recover , from the telegraph company for its tort will be, the difference . between the market value of the stock the day the message was ^ gent and the price actually paid by C. L. S. & 0. Co.The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.
Costs'of appeal are awarded to appellant.
Stewart and Ailshie, JJ., concur.