Schwartz v. Atlantic & Pacific Telegraph Co.

The defendant is not a common-carrier, and, therefore, the peculiar liability of a common-carrier does not exist in this case. (Grinnell v. W. Un. Tel. Co., 113 Mass., 299; Breese v. U. S. Tel. Co., 48 N. Y., 132.) The defendant’s liability must depend on its obligation to perform what it undertook, qualified as that may be by any lawful condition imposed by it on the plaintiff.

*159Courts sometimes speak of the regulations, adopted by such companies as the defendant, as constituting a contract with those who send messages. But while individuals may make whatever contracts they please, I should be unwilling to admit that a company, like the defendant, discharging a quasi public employment, could impose whatever regulations it pleased upon its customers, whether those regulations were reasonable or not; and that by printing such regulations on its message papers it could compel every person to accept them. There must be, in my judgment, this qualification, that the regulation shall be reasonable ; and this qualification I understand to be recognized. (Breese v. U. S. Tel. Co., ut supra, p. 141.) By such reasonable regulation, brought to the knowledge of the sender, they can protect themselves against liability for mistake “ not occasioned by gross negligence or willful misconduct.”

■In the present case the defendant had a usual and regular fee for sending a message from Albany to Chicago. To guard against mistakes they required the message to be repeated, and this requirement and some other matters were printed on the ordinary blank. They also had a half-rate message blank which was in common use.

By the terms printed upon this they offered to send messages at night at one-half the usual rates, on condition that they should not be liable for errors or delay from whatever cause occurring, but should only be bound to return the money paid. The plaintiff's message was written by him on one of those half-rate blanks, under the words, “ send the following message subject to the above terms, rvhich are agreed to; ” and he paid one-half the price which he would have paid for a day message.

Now, it is strongly argued by the plaintiff that the terms of this message blank, strong as they are, do not relievo the defendant for liability for its own negligence. And on that point the recent case of Maynard v. Syr. and Bing. R. R. (71 N. Y., 180) is cited. I admit the full force of that decision, which seems to bo a step towards bringing back the law of common-carriers into a condition where the public will be protected. But that decision, and others like it, concern common-carriers, and their duties in respect to the care and custody of property in their possession. They are not strictly analogous with the present. For no property is *160entrusted, to the possession of the defendant. Its only duty is to send a message. And, furthermore, it will be seen that the defendant does not pretend to avoid, but only to limit, its liability for negligence. It admits that it is bound to return the money paid ; but only claims to be free from further liability.

Nor is it necessary to say whether or not the defendant would be exempted from liability in case of “ gross negligence or willful misconduct ; ” for the only admission in the case is simply of negligence.

The case, then, seems to be this. The company having a system of receiving and repeating messages by which it can, as it supposes, insure accuracy, and having a certain fixed rate for ordinary messages, is willing to send messages during the night, at half the ordinary rate (and, of course, without repetition), provided that, if the message is not received, the only liability of the company shall be - to return the money. The plaintiff knew of these terms and accepted them. They are perfectly reasonable and he should be bound by them. The company may justly suppose that a man having a message to send, of pecuniary importance, will take the precaution to have it repeated, and certainly will not send it on a night and half-rate blank, and relinquish in express words all claim for damages, except the return of his money» Many messages are sent of trivial importance. I see no reason why the defendant may not afford the opportunity of sending such messages during a certain time and at a reduced rate ; and why it may not, in such cases, limit its liability, as in the present instance ; provided, however, that it also affords a reasonable opportunity of sending messages for the non-delivery of which it shall be liable to the amount of the damages sustained.

In this view of the case it is unnecessary to examine the question, whether the plaintiff sustained any damages for which he could recover.

The verdict should be set aside and the plaintiff should recover fifty cents.

Verdict set aside and judgment ordered for plaintiff for fifty cents, with costs to defendant.