The plaintiffs were the receivers of the message. The' contract limiting the defendant’s liability was with the sender, not with the receivers, of the message. The receivers are not bound by it. It does not even purport.to. limit the liability of the company to them.' This action is not based on it, but on a negligent breach of the duty which the defendant owed to the- plaintiffs to deliver to them the message in the words in.which it:received it from the sender. The defendant is á. public-service corporation, exercises'” a sort of public office” (New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. [U. S.] 382), and has public duties to perform. This is a principle now thoroughly understood. ' It does not seem plain to many who *439have considered the matter how, on principle, á public service corporation may be allowed to-evade liability for a'neglect of its public duty, by which an individual is damaged, by an agreement of that effect, any more than any public officer may do the like. However far the decisions of some states may have gone in that direction, inadvertently or otherwise, no such question confronts us in this case, for the defendant had no such, agreement with the plaintiffs. Its liability in this case is placed by the complaint on a negligent breach of its' duty to the plaintiffs, and on that basis they had the right to recover. The learned trial judge therefore committed no error in refusing to rule that the contract between the defendant and the sender bound the plaintiffs. In the contrariety of decision in this country, the principle of duty stated in the foregoing is at all events established by the great weight of authority, and after the elucidation of it which we have had from statesmen and publicists in recent years, it is now plainer than ever. The law is a progressive science. A collection here of the principal decisions in favor of the foregoing may not.be attributed to the overgrown habit of citation in a case so important to every one as this is (De Rutte v. N. Y., etc., Tel. Co., 1 Daly, 547; Rose v. U. S. Tel. Co., 3 Abb. Pr. [N. S.] 408; Elsey v. Postal Tel. Co., 20 N. Y. St. Repr. 97; Wolfskehl v. W. U. Tel. Co., 46 Hun, 542; Elwood v. W. U. Tel. Co., 45 N. Y. 549; Breese v. U. S. Tel. Co., 48 id. 132; Lowery v. W. U. Tel. Co., 60 id. 198; Pearsall v. W. U. Tel. Co., 124 id. 256; Curtin v. W. U. Tel. Co., 16 Misc. Rep. 347; New York & Wash. Printing Tel. Co. v. Dryburg, 35 Penn. St. 298; Tobin v. Tel. Co., 146 id. 375; Harris v. W. U. Tel. Co., 9 Phil. 88; Bartlett v. W. U. Tel. Co., 62 Me. 209; Western Union Tel. Co. v. Dubois, 128 Ill. 248; Webbe v. W. U. Tel. Co., 169 id. 610; Green v. Tel. Co., 136 N. C. 489; McCord v. W. U. Tel. Co., 39 Minn. 181; Smith v. W. U. Tel. Co., 83 Ky. 104; Telegraph Co. v. Longwill, 5 N. Mex. 308; Shingleur v. Tel. Co., 72 Miss. 1030; Becker v. W. U. Tel. Co., 11 Neb. 87; Fererro v. W. U. Tel. Co., 9 D. C. App. 455; 35 L. R. A. 548; Western Union Tel. Co. v. Richman, 6 Cent. Rep. 565; 19 W. N. C. 569).
Where there is no contract limiting the company’s liability, it is liable for the full amount of damages caused by any breach -of its public duty (or negligence, as some call it) to either the sender or *440receiver —■ unless it be the law that it is under no such duty. If telegraph companies be. under no such duty to receivers of messages, then we do not need to bother our heads about the contract limiting this defendant’s liability which it made with the sender in this case ■— it is wholly irrelevant. But if they are under such a duty to receivers of messages, to use reasonable care to deliver to them messages in the words in which they are received from senders, then the plaintiffs in'this case are entitled to recover all the damages they have sustained by the breach of such duty; .for if the sender was capable of limiting by contract with the company the amount of the damages these plaintiffs would be entitled to recover (a thing by no means t'o be admitted), it suffices that the sender made no such contract. It (the sender) only contracted that its damage should be limited to the amount paid by it to the company to transmit the message,, unless it paid an additional sum to have the message repeated.
Moreover, the sender could not be damaged whether the message went right or wrong, and as it therefore had no interest to induce it. to pay for a repetition, there was no consideration for any contract by it. How can the neglect of a sender, t'o pay for a repetition in such a case be the basis of a contract by the sender .limiting the duty and liability of the company to the receiver %
Telegraph companies being under a public duty (i. e., a duty arising out of the public service- which they are licensed or incorporated by government to perform) to receivers of messages, senders of messages cannot by contract lessen or do away with that duty. They may only do so in respect of the duty due to themselves. The sender of a telegraph message is in no sense the agent of the receiver. There may be no accord between them; they may even he in hostility to each other, and the message may be adverse instead of friendly. The rules between. consignor and consignee, shipper and purchaser, do not apply.- The decisions are agreed that the law of common carrier does not apply to telegraph companies. There is no analogy on which to apply it.
The objection that gross negligence of the defendant was not established by the evidence is ■■immaterial. The complaint alleged, and the charge of the learned trial judge made a verdict depend upon, gross negligence, it is true. But there is no rule requiring proof of gross negligence in. the transmission of telegraphic mes*441sages. Some decisions are to the effect that an agreement limiting the liability of a telegraph company (like that with the sender -in this casé) does not cover a case of gross negligence, which is a very different thing (Breese v. U. S. Tel. Co., 48 N. Y. 141; Kiley v. W. U. Tel. Co. 109 id. 236; Pearsall v. W. U. Tel. Co., 124 id. 256). It only sets a limit on the power of such companies, the same as of common carriers, to limit their liability by agreement. The courts. quite generally say that they are not able to define gross negligence, or distinguish it from ordinary negligence, but they leave it to juries to do so, although juries must find the task just as impossible as the courts (Will v. Postal Tel. Cable Co., 3 App. Div. 22; Rieser v. Met. Ex. Co. 45 Misc. Rep. 632; Railroad Co. v. Lockwood, 17 Wall. 357; Steamboat New World v. King, 16 How. [U. S.] 470; Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489; Hart v. W. U. Tel. Co., 66 Cal. 579; Storer v. Gowen, 18 Me. 177; Meek v. Penn. Co., 38 Ohio St. 632). But it is not necessary to go into all this, or1 do more than mention it, for there being no agreement of limitation of liability in this case which affects the plaintiffs, it is not necessary for us to try to se.t tip a standard and definition of gross negligence and consider whether the evidence reached it. '
It suffices to mention the leading and typical case .which is contrary to the foregoing (Ellis v. Amer. Tel. Co., 95 Mass. [13 Allen], 226), in that it holds that the right of a receiver of a telegraphic message to damages against the telegraph company is derived from, or is. incidental to or dependent upon, the contract between the sender and the company, instead of the public duty of the company. The decision therein and in the cases of that class is not the law of this state. The distinction or line of cleavage between the cases is that some would rest the liability of telegraph companies on breach of contract only, disregarding thé public duty they owe independently of any contract, and which is -made the basis of liability by the opposing set of cases.
The judgment should be affirmed.
Hooker, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.