Properly to examine and' cóúfe'idkü the important, and, in this State, undecided questions .arisw ing on the record, this cause was held over from the last term. We are now prepared to decide it.
1. Telegraph piintelTrastrictions: statute. The original message left with the defendant for transmission was this:
“ LÍVe h°SS> S1'X (6)> SÍX (6J). Dressed, s^x three-quarters (6f), seven (7) firm.”
¿Leliwered to the plaintiff it read:
“ Live hogs six three-quarters, seven (7) firm.” Prom the middle of the message was omitted the words :
“ Six (6), six quarter (6^), dressed.”
The effect of the omitted words was that the price of dressed hogs was stated to be the price of live hogs. That the mistake occurred is not controverted. That the plaintiff acted upon the message as delivered, purchased hogs upon the basis of value therein stated, and was damaged in consequence to the extent of $950, are undisputed facts.
The general question in the case on the merits is, whether the defendant is liable for this mistake and the damages which it occasioned to the plaintiff?
The solution of the question involves the consideration of several others, which we proceed to notice in proper order.
The plaintiff, in the first place, maintains that the defendant is liable'for this mistake by the express provisions of the statute. (Eev. § 1353.)
The section is this:
*446“ The proprietor of a telegraph is Halle for all mistakes in transmitting messages made by any person in his employment, as well as for all damages resulting from a failure to perform any other duties required by law.”
To this portion the defendant answers, that the statute applies only when the parties have made no special contract; that the legislature did not intend to prohibit parties to enter into such reasonable stipulations as they might deem proper respecting the transmission of messages ; that in this instance the parties, viz., the company on the one side and the plaintiff, through his agents, on the other, did regulate their respective rights by the conditions and terms printed at the head of the message; and it is to these conditions and terms, so far as they apply, and not the general declaration of the statute, that resort must-be had to determine the measure of the defendant’s liability.
To this the plaintiff rejoins, that the statute is founded on public policy and is declarative of it; that it authorizes no regulations or contracts restricting the liability it imposes ; and it is argued that since it is shown that, by repeating messages, mistakes may be avoided, it becomes under the statute the duty of the company itself to repeat the message, a duty which it cannot, by regulations, shift on to the public.
On this point the court below held with the defendant, as will be seen by reference to the instruction numbered one, copied in the statement of the case. If there was any error in this it is one of which the defendant cannot complain. Our inclinations, however, are that the point was rightly ruled below, but since the exigencies of the present appeal do not require any positive determination of it, we pass it, with the statement that we will concede, for the purposes of this case, that the statute does not make the defendant liable at all events, and that it is *447competent for the company, notwithstanding the statute, to enter into stipulations, or to adopt reasonable rules, conditions and regulations governing the transmission of messages; and it will also be conceded that the regulation respecting the repetition of messages (the only one involved in this case), is reasonable, and binding upon the parties. It is the more proper to pass the point without any decisive ruling, because it has occurred to us, though counsel, we believe, did not allude to the circumstance, that since the message was delivered to the defendant in another State, it might be debatable whether our statute had any application to the case, even though the mistake may have happened in that part of the defendant’s line wdiich is situate in this State.
Respecting the right to limit liability by stipulation, or printed conditions, see, generally, Wann v. Telegraph Company, 37 Mo. 472, 1866 (similar statute to Iowa); Camp v. Telegraph Company, 1 Met. (Ky.) 164, 1858 (right affirmed without aid of statute); Ellis v. Telegraph Company, 13 Allen (Mass.), 226, 1866; MacAndrew v. Telegraph Company, 17 C. B. 3, 1855; Telegraph Company v. Carew, 15 Mich. 525, 1867; S. C., 7 Am. Law Reg. (N. S.) 18; Birney v. Telegraph Company, 18 Md. 341, 1862; Breese v. Telegraph Company, 45 Barb. 274, 1866; and see cases collected, 2 Am. Law Rev. 615-632; and by Prof. Dwight, 4 Am. Law Reg. (N. S.) 192-199.
2. extent on ligence. Having assumed the validity of the printed conditions so far as respects the repetition of messages, and that the message in question was sent subject thereto, the inquiry next arises, What is the meaning and effect thereof, so far as they relate to the facts of the present cause?
As to the cause of the mistake, the parties differed. One of the positions assumed by the plaintiff, if not the *448main one, was that the mistake was caused by a defective instrument in the Office of the company at the place at which the message was received. He offered evidence tending to establish his theory. This theory was denied by tine defendant, and it offered evidence ten ding to show that the mistake could not have been occasioned by the alleged defect in the instrument, but must have been occasioned by uncontrollable atmospheric causes.
The third and fourth instructions of the court (see statement) relate to these two conflicting theories.
In the third instruction the court directed the jury that, although the contract was made as claimed by the company, yet a it was still the duty of the defendant to employ skillful operators and proper instruments, * * and if the message was not transmitted correctly, not by reason of its not being repeated, but because of unskillful operators or defective or imperfect instruments, the defendant is liable.”
The fourth instruction lays down the converse proposition, and says to the jury that if the mistake was caused “ by the interruption of the working of the telegraph by atmospheric electricity, or other unavoidable or uncontrollable cause, then the defendant is not liable.”
The tenth instruction requires that the company, notwithstanding the special conditions, shall keep good instruments. The eleventh instruction substantially tells the jury that it is incumbent on the plaintiff to show that the mistake happened by reason of a defective instrument. The twelfth instruction lays down the law to be that, if the mistake happened in consequence of the want of ordinary skill in the operators, or in consequence of the use of imperfect or defective instruments, the defendant would be liable. And from the special terms and conditions at the head of the printed message the defendant could not well complain of this statement of the law. On general prin*449ciples, it would be bound to employ skillful operators, to exercise due care, and to use good instruments. And on general principles if it omitted this duty',, and damage ensued to a party in consequence of such omission, he would have his action therefor.
"We do not understand the learned counsel for the company to insist that the general principles of law stated in the instructions of the court would not be correct if it were not for the printed conditions under which the message was sent, and which, it is insisted, modify the common-law liability of the company.
It is claimed that these conditions govern the rights and measure the liabilities of the parties, and that their effect is to exonerate “ the company from any loss which may arise from mistakes in messages, whether arising from unavoidable causes, or the improper or negligent conduct of its servants.” It is insisted by the distinguished counsel for the appellant that such conditions are reasonable, because “ the element used is subtle, intangible, fitful, capable of only partial control by man, and always liable to great interferences from causes entirely beyond human control. Atmospheric electricity is only one of the many difficulties with which the telegrapher has to contend.- At first the mode of dealing with these difficulties was not understood, nor is it yet matured, although men of talent, of scientific attainments, and of the closest observation, have devoted many years to the subject. Enough, however, has been learned to demonstrate absolutely the impossibility of avoiding mistakes, except by repeating messages. * * Contracts such as the present are reasonable, and such as the company had a perfect right to make. Still, we are liable for gross negligence, notwithstanding the stipulation would exempt us. This is the hardest rule that has ever been held against a telegraph company;” And he objects *450to the third instruction, “ because it holds the company liable for' ordinary negligence instead of gross negligence;” and to the fourth instruction, because it is contended that its effect is, that if the mistake was not produced by unavoidable causes the company is liable,
The substance of the court’s instructions, taken together, is, that the company, notwithstanding the special printed conditions, is responsible for mistakes happening in consequence of its own fault — such as want of proper skill, or ordinary care on the jwt of its operators, or the use of defective instruments — but is not, under those conditions, responsible for mistakes occasioned by uncontrollable causes, such as atmospheric electricity, provided these mistakes could not have been ascertained and guarded against, or prevented by the exercise of ordinary care and skill on the part of the operating agents of the company.
Thus viewing the instructions of the court, they state the law correctly, at least not unfavorably to the defendant. The considerations mentioned by the appellant’s counsel are quite sufficient to justify a court (in the absence of a statute otherwise settling the liability of the company) in holding reasonable the condition as to repeating messages, and exempting it from liability for mistakes in unrepeated messages, occasioned by unavoidable or uncontrollable causes, provided proper instruments have been used and proper care and skill exercised by the company’s employees to avoid or prevent the mistake.
3.— cannot ex-onorate lroin all liability. But the arguments suggested furnish no reason why a company should be allowed to make general . , -..n , •, - printed conditions which should have the effect to relieve it from liability for “the improper or negligent conduct of its servants.”. Telegraph companies, like railroad companies, owe important duties to the public. Generally, there are no competing lines, and *451if so, the business is necessarily in the hands of a few. These companies must act in good faith toward the public, and cannot, by general conditions, demand unreasonable concessions from those proposing to send messages.
It is not necessary to discuss wha't might be lawfully done by a special contract.
But I deny that companies can adopt general printed rules, exacting, as a condition of sending messages, that the sender shall exonerate or release the company from damages caused by defective instruments, or by the want of proper skill in the operators, or by their failure to use due care.
The court has carefully examined the printed condi-j tions underneath which the message in question was written, and its opinion is, that none of these, conditions! should be construed as undertaking to exempt the com-! pany from liability caused by its own fault. These eon- i ditions, fairly viewed, pre-suppose or assume that the! company will discharge its reasonable, common-law; duties, by using good instruments and by employing skillful agents, who shall, in the performance of their duties, exercise due and proper care.
The statements in these “ conditions ” as to atmospheric causes, and the promise “in good faith to endeavor to! send messages correctly and promptly,” shows that the purpose obviously is to guard against liability for mistakes arising from atmospheric or other like causes, not to provide for exemption from liability for mistakes/ caused by its own avoidable faults.
If any sinister or unfair purpose, such as exoneration from liability for its .own want of due care, was intended, such purpose — conceding its lawfulness — should be unmistakably expressed, and will not be held by the court to lurk in any general language
*4525_ordinary £egu4nceS- | Nor can we assent to the proposition maintained by the i appellant’s counsel, that under such conditions “ the comPany is held for gross negligence only, this being the hardest rule that has ever been -held against a telegraph company.”
We have examined all the leading cases known to have i been'decided, with respect to this subject, and have not || found, one holding (when this was the exact point in ¡judgment) that the ordinary printed conditions as to j repeating messages have the effect to release the company from [mistakes caused by its own want of ordinary care.
.There is a dictum in McAndrew's Case — the first case which arose (17 Com. B. 3, 1835), to the effect that by regulations the companies may protect themselves from liability for mistakes in unrepeated messages, except those caused by their gross negligence, and this expression has been incautiously copied and used arguendo by other courts, as for instance in Wann v. Tel. Co., 37 Mo. 472.
f Without adverting to the difference between the EngIlisli and American rule as to the right of a carrier to limit his liability and the mode of doing this when it is allowed, it is sufficient to repeat that it never has been held that a telegraph company may, by general printed conditions, stipulate for exemption from all liability except for gross ¡ negligence.
In view of the importance of the principles involved and the consideration that the law as to the rights and responsibilities of telegraph companies is, in a large measure, yet to be settled, I may be justified in departing from my usual course and review briefly some of the cases bearing upon the question respecting the effect of the condition as to repeating the messages upon the liability of the company.
In Ellis v. Tel. Co. (13 Allen [Mass.] 226, 1866), the mistake in the dispatch consisted in making it read $175 *453instead of $125. The company had established the usual condition as to repeating and insuring messages. In the statement of the case occurs the important fact: “ There was no evidence of carelessness or negligence, except the error in the sum, which was made by some agent of the company in transmission.” The Supreme Court, in api*^. opinion prepared by the able and distinguished Chfef , f Justice Bigelow, held the stipulation as to repeating sages to be reasonable, and that, so far as reasona^fc/it'Y) would limit the liability of the company. It also|l^e|^ that the plaintiff was not entitled to recover without,., further proof of carelessness than that there was an ^rro^sl'-in the message as delivered. After critically examini^g^ the case, I am of opinion that it is only authority for these two points. The reversal of the judgment below in that case must be supported on the ground that, under the circumstances, the plaintiff ought to show carelessness on the part of the company or its agents, and that, as the message was not repeated, this could not be inferred (as the court below had instructed) from the mere fact that a mistake in the sum had been made. If this be the true view of that case, as it undoubtedly is, it commands cordial assent. •
It is said by Chief Justice Bigelow, near the end of the opinion, that “of-course the defendants would be liable for any negligence causing damage, which .would not have been prevented by a compliance with these rules,” viz.: those relating to the repetition of messages. If it is meant to be asserted, as might be implied, that a company can/ as respects unrepeated messages, make conditions exempting themselves from all liability for negligence causing damage, this is a proposition from which, in this breadth, I must withhold my concurrence. Wann v. Tel. Co. (37 Mo. 472, 1866), is very much like Ellis’ Case, just mentioned.
The plaintiff ordered, by telegraph, salt from New York} by “ sail.” As the dispatch was delivered it read ship *454by “rail.” This was done, and damage caused, and suit brought. The plaintiff did not repeat. The company had the ordinary condition as to repeating dispatches. It appeared that “ the only evidence to sustain the charge of carelessness was the mistake in the message.” On this state of facts the company vras held not liable. The case cannot, I think, be fairly said to 'decide that the effect of not repeating is to exempt the company from liability for want of ordinary care, since there was no evidence of the want of such care on its part. The judgment below in this case was, in my opinion, properly reversed, but the reversal should be placed on the ground that the plaintiff offered no evidence to prove neglect (except the error in the message), and the instructions of the court below held the company (under the regulations as 'to repeating) to too strict a measure of liability.
In Camp v. Tel. Co. (1 Met. [Ky.] 164, 1858), a message containing an offer for the purchase of whisky was delivered, reading 16 cents per gallon instead of 15 cents. Usual condition as to repeating.
The plaintiff neither averred or proved negligence on the part of the company, or want of proper skill in its agents, but based his action wholly upon the notion that the company was by law bound to transmit the message correctly. It was held, and most properly, that the condition as to repeating was reasonable, and that the company was not liable.
The court say: “ The plaintiff must, therefore, be regarded as having sent the message at his own risk, inasmuch as he failed to have it repeated, and consequently the company [under the case made] is not liable for the mistake.”
This is right; but the case does not hold that such a condition can exempt a company from the duty of exercising proper care to secure correct transmission even *455though the message be not repeated. Of the same general character is Bresse v. Tel. Co., 45 Barb. 274, 1866. The mistake ($7,000 instead of $700) was caused “ by somef error of some of the defendant’s operators, the preciseJ cause of which is unlmovm,” and it was held that tlioj condition as to repeating was a defense. But the case does not decide that such condition will exempt the company and its agents from the exercise of proper care to secure a correct transmission.
In accordance with these views is the opinion of a distinguished j nrist. Speaking of Mc Andrew's Case, Judgei Redfield (2 Railway, 3d ed., p. 244, pl. 12) says: “In the), case last cited a quere is made how far the company, in such case (exempting itself from liability unless message is repeated), will be liable for gross negligence. We think there ought to be no doubt as to the responsibility of the company in such cases for even ordinary neglect. And the whole extent to which such a condition should) be held to quality the responsibility of the company is,i that it will not be held absolutely responsible as insurers of the accuracy of transmitting unless repeated and paid for as such.” And he repeats the same view in his more recent work on carriers, just published. (Redf. on Carr. §§ 552, 557, 561.)
In the Tel. Co. v. Carew (supra), Judge Christiancy, arguendo, says, “But doubtless the use of good apparatus J and instruments would be required, and reasonable skill! and a high, perhaps the very highest, degree of care and diligence in their operation.”
These authorities above cited fairly warrant the propo-| sition that where the condition as to repeating exists and is known to the party, or where he is bound to take notice of it, and a mistake occurs in an unrepeated message, the mere proof of such mistake, without some other evidence *456of carelessness or negligence on the part of the company, will hoF make it liable.
To apply that principle to this case: The plaintiff, to recover, must prove something more than the mistake and fhe damage. He must show that this mistake was caused by the fault of the defendant, and that it might have been avoided if the defendant’s instruments had been good ones, and if the defendant’s agents had possessed the I requisite skill and exercised the proper care and diligence in respect to the transmission and' receipt of the message Sin question.
ÍAs the judgment must he reversed and a new trial ordered, for the en’or of_the courts in the^ adrhjssion of evidence, we have decided those questions of law which would necessarily arise on the re-trial.
Appellant’s counsel contend, that the verdict is against the evidence.
Hpon this point we do not deem it necessary or expedient to express any opinion. The evidence on the next trial may not be the same.
Ilf the plaintiff can establish, that the instrument was not a reasonably efficient one, or not in good repair and condition, and that by reason thereof the mistake was caused, he will thereby make out a cause of action, notwithstanding the printed conditions at the head of the message.
So if the Clinton operator at the intermediate station, or Mr. Short, the operator at the terminal station, did not, under the circumstances, considering the weather, the character of the message, the nature of the interruption and the like, use that degree of skill, care and dili- . geuce which was reasonably required, and in consequence the mistake happened, when, by the exercise of such, skill, care and diligence, the mistake in question would have been avoided, the company is liable.
*457But if the error is not shown to be attributable to the fault of the company, the plaintiif must fail. And, if the jury believe, from the whole evidence, that the mistake was occasioned by atmospheric causes, which a reasonable degree of care and skill could not guard against and prevent, it is their duty to find for the defendant.
One other point ought, perhaps in this connection, to be referred to, and the law in relation thereto stated, since it may again arise.
We do not understand the pleadings to limit the plaintiif to proving the apparatus to be defective in order to make out his case, but he alleges generally the negligence of the defendant in the transmission of the message.
The defendant has contended in this court that the mistake in the message arose in this way :
While the message was being received by Mr. Short, the receiving operator at the place of destination, atmospheric electricity affected the line west of the sending operator. This happened when the receiving operator, Mr. Short, was at the first word “ six.” The machine then spluttered. The sending operator was ignorant of this, and continued sending the message until he had passed the last “ six.” Meanwhile the receiving operator gets his instrument- into “ adjustment,” that is, he regulates the tension of the rubber springs so as to adapt the machine to the strength of the current, and ho then says to the sending operator to repeat from the word “ six,” that is, from the last word which was received plainly. The receiving operator meant the first six, the sending operator supposed he meant the last six, for he had continued to send the message in ignorance of the faulty working of the line beyond him. The sending operator repeated from the last “ six,” and from that only, in consequence of which all the message between the two words “ six ” aves omitted.
*458If these were the facts, is the defendant liable? The general principles governing this inquiry have been before stated. If the operating agents of the company used, under the circumstances, reasonable and proper care to guard against the mistake, then there is no liability, for ¡there would be no nejrlisenee. and if no nealisence the .nn'jur» ^ ■■ ? i,, iiw^m-Tin r —rfTVi i ~ n mi---r companvis protected by the printed condition as to repeating the message.
On the other hand, if the operating agents of the company did not use ordinary, usual and reasonable care in transmitting the message, and if the want of care (and not atmospheric causes, or the infirmities of telegraphing) caused the mistake, the company is liable. But the plaintiff not having repeated the message, it is incumbent on him to satisfy the jury that the mistake was caused by the defendant’s negligence, and would not have occurred had the defendant’s agents used proper care in the transmission and receipt of this particular message.
t.— evidence, declaration of agent: res gestee, As appears in the statement of the case, the court, against the defendant’s obiections, admitted 4 J , . , ” ; the plaintifl to give m evidence certain admissions of Short, the operator, made at a period distinctly subsequent to the delivery of the message. The rule of law respecting the admissibility of the declarations and admissions of agents to bind their principals is well settled.
To be binding the declaration must be within the scope of the agency, and constitute part of the res gestos. The statement of the law on this point by Mr. Greenleaf (1 .Ev. § 113), is very happily expressed. “The admission or declaration of the agent binds the principal only when it is made during the continuance of the agency, in regard to a transaction then depending, et clum fer-vet opns,” etc. And the law, as thus laid down, has been before recognized in this court. Farner v. Turner, *4591 Iowa, 53; Wiggins v. Leonard 9 id. 194, which, in principle, applies to this case. And see also Story on Agencies, §§ 134, 137, and cases cited.
The law is well illustrated by two recent cases in Massachusetts. In the one, an action by a passenger against a railroad company for the loss of his trunk, the admission of the conductor, jbaggage master or station master, as to the manner of the loss, made the next morning, in answer to inquiries for the trunk, are competent against the company, it being part of the duties of such agents to deliver the baggage of passengers, and to account for the same, if missing, and inquiry is made within a reasonable time. Morse v. R. R. Co., 6 Gray, 450.
But, in an action against a railroad company for damages by a collision through the alleged negligence of the engineer, his statements as to the accident, made a few days afterward, were held not competent against the company. Robinson v. The R. R. Co., 7 Gray, 92.
The message, in the ease at bar, had been delivered from one to three days before the alleged declarations were made by the agent, which were, in part at least, narrative of a past occurrence, and no part of the res gesta ■ — -no part of a depending transaction, and it falls w'ithin the class illustrated by the case last cited, and not by the one first cited from Gray’s reports ?
In the opinion of the court it is very doubtful whether any portion of the declarations or admissions of Mr. Short was competent. But certain it is that his statements that he “ believed the instrument was the cause of the mistake; that he had written to tbe company two or three times about it, and that they paid no attention to it,” are clearly incompetent and admissible on no conceivable principle.
We have looked at the case to see whether, conceding the incompetency of this portion of the evidence, we *460could fairly say that it did not prejudice the defendant. But when it is remembered that one of tlie principal points of contest before the jury related to the question of fact whether or not the instrument was defective, that to this question both parties directed a large portion of the evidence, and that this subject occupies a considerable part of the charge of the court, the materiality of the admissions of Short, erroneously allowed to go to the jury, is too manifest to admit of dispute. Under these circumstances this court cannot affirm that it reasonably appears that the evidence did not unjustly prejudice the cause of the defendant.
And for this reason the judgment of the District Court must be reversed. The question made by the defendant as to non-liability for interest on the damages is settled against it by the stipulation on file, which fixes the amount of the recovery, if there is a liability, and provides that the sum named shall be with interest.
Reversed.