
    CASE 34 — PETITION EQUITY
    JULY 14.
    Camp vs. Western Union Telegraph Company.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    “ The public are notified that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated by being sent back from the station at which it is to be received, to the station from which it is originally sent. Half the usual price for transmission will be charged for repeating the message. This company will not be responsible for mistakes or delays in the transmission or delivery of unrepeated messages, from whatever cause they may arise.” Held — That the foregoing condition is reasonable and just, and such as the telegraph company had a right to prescribe as the price of its responsibility; and a party acting under the notice, who does not have his message repeated, will be regarded as sending the same at his own risk, and the company will not be liable for damages resulting from a mistake not occasioned by negligence, or the want of skill of the agents of the company.
    The facts appear in the opinion of the court.
    Haggin and Mize for appellant—
    The appellee is under a like responsibility as common carriers, (1 Parsons on Contracts, 648,) and cannot be relieved of this common law liability by any implied contract varying the responsibility. (American Law Register, vol. 1 ,p. 685.)
    Here is a plain undertaking to do a particular thing, and the failure is..a common law liability. Defendant does not show that due care and skill were used to transmit plaintiff1’s message correctly. It was not necessary for plaintiff to aver or show negligence; it was only necessary for him to show a contract and breach thereof by defendant, and the damage sustained. Defendant has not excused himself. (1 Parsons on Contracts, 634.)
    If the rule of liability be as contended for by the other party, it is incumbent on appellee to show that the breach of contract' resulted from a defect inherent in the telegraph system, and not from the fault of appellee. (1 Parsons on Contracts, 606.)
    As to the distinction between the common carrier and private carrier for hire, see 1 Parsons on Contracts, 634. The appellee must show that the mistake was the result of accident before it is incumbent on appellant to show that the accident arose from negligence.
    Pirtle and Ballard for appellee—
    If plaintiff received the whisky, not knowing that he was to be charged sixteen cents per gallon therefor, he was only liable for its reasonable value, and has sustained no damage.
    There is no ground for applying the strict liability of common carriers to telegraph companies. They do not corrie within the reason of the law which imposes extraordinary liabilities on common carriers. (Story on Bailments, sections 566, *567, 554.) The law applicable to common carriers being one of great rigor, its application is not to be extended. (Boyce vs. Anderson, 2 Peters' 8. C. Rep., 150; 25 Wend.., 598; 6 Hill, 168.) The company can only be made liable upon allegation and proof of negligence. {Story on Bailments, 213, 278, 410, 454; Platt vs. Hibbard, 7 Comen, 501; Beardslee vs. Richardson, 11 Wend., 25; Parsons on Contracts, 606, and note; Logan vs. Matthews, 6 Barr, 417.)
    It is now universally admitted that a carrier may limit his liability by express contract. The dispatch of plaintiff was sent under such contract, and the defendant is exempted from responsibility. {N. Jersey Steam Navigation Co. vs. The Merchants'1 Bank, 6 Howard's S. C. Rep., 344; Dow vs. Same, 4 Sanford's Rep., 136; Story on Bailments, 549; 1 vol. Law Reg., 65; Me Andrews vs. The Electric Telegraph Co., Lnw-mt4-. Eq. Rep., 180.) Cited, also, Shields vs. The Washington Telegraph Co., vol. 9 Western Law Journal, 283.
   JUDGE SIMPSON

delivered the opinion oe the court:

This action was brought against the Western Union Telegraph Company for failing to transmit correctly a communication from the appellant, at Louisville, to David Gibson & Co.,, at Cincinnati. The plaintiff alleged in his petition that the) defendant undertook, for compensation then paid, to transmit) from Louisville, Kentucky, to David Gibson & Co., of Cincinnati, Ohio, a proposition to purchase two hundred barrels of whisky at fifteen cents per gallon; and that instead of trans-'tmitting the proposition correctly, the communication, as made, (represented him as offering sixteen cents per gallon for the whisky. lie also alleged that Gibson & Co. advised him that they accepted his proposition, and immediately forwarded to him two hundred barrels of whisky, under the belief that he had offered them sixteen cents per gallon for it, which was received by him under the belief that it had been sold to him at fifteen cents per gallon. He further alleged, that in consequence of the failure of the defendant to transmit the message intrusted to it, and the transmission by it of a message of a different import, he was compelled to pay sixteen cents per' gallon for the whisky, and had thereby sustained a loss to the^* amount of one hundred dollars. ^

The Telegraph Company, by way of defense, relied upon a notice of the terms and conditions on which messages were received by it for transmission, which, so far as they are applicable to the present case, are as follows:

The public are notified, that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated, by being sent back from the station at which it is to be received, to the station from which it is originally sent. Half the usual price for transmission will be charged for repeating the message. This Company will not be responsible for mistakes or delays in the transmission or delivery of unrepeated messages, from whatever cause they may arisen

It was alleged in the answer that the plaintiff had notice of the aforesaid terms and conditions, and sent the message subject to them, but did not require the message to be repeated, nor pay, nor agree to pay, for its repetition.

There is no allegation in the plaintiff’s petition that the t mistake was occasioned by negligence, or was the result of1 incompetency or want of proper skill on the part of the agents who were employed by the Company to act as operators in the sending and receiving of dispatches; but the failure of the Company to comply with its contract to transmit the message correctly, is alone relied upon as the foundation of the plaintiff’s right to a recovery in the action.

The proof shows that it is impracticable to transmit telegraphic communications with absolute accuracy at all times; ánd that such communications, from the very nature of the medium through which they are made, are subject not only to occasional interruptions and delays, but also to inaccuracies in words and expressions. It may be, therefore, reasonably pre-\ sumed that the failure to deliver this message correctly, was the result of a mistake to which such communications are liable, and which will sometimes occur, even where the utmost care and skill are exercised.

The question then is, was the Company bound at all events to transmit the dispatch accurately, or had it the legal right to modify its liability, by giving a public notice, and bringing it home to the plaintiff, of the terms and conditions on which alone it would be bound for mistakes in the transmission of messages ?

' It is contended that the responsibility of the Company is fixed and defined by law, and cannot be changed or modified by any terms or conditions that the Company may think proper to prescribe.

It can hardly be doubted that the Company and the person sending a message, might, by express contract, regulate the extent of the liability of the former for any mistake that might occur. Here, however, there was no express contract between the parties, but the Company gave notice of the terms and conditions upon which it was willing to be responsible, and the plaintiff acted under that notice in sending the message.

We do not deem it necessary to decide, in this case, to what extent a telegraph company has a right to limit its liability by a notice to those for whom it undertakes to transmit messages. All that we are now required to decide is, whether the condi- j tion which the Company relied on in this case is reasonable,y and such a one as it had a right to prescribe.

The public are admonished by the notice, that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated. A person desiring to send a message, is thus apprised that there may be a mistake in its transmission, to guard against which it is necessary that it should be repeated. He is also notified that if a I mistake occur the Company will not be responsible for it unlessK the message be repeated. There is nothing unreasonable in \ this condition. It gives the party sending the message the \ option to send it in such a manner as to hold the Company 'j responsible, or to send it for a less price at his own risk. If /' the message be unimportant, he may be willing to risk it with- ~'/ out paying the additional charge. But if it be important, and he wishes to have it sent correctly, he ought to be willing to pay the cost of repeating the message. This regulation, considering the accidents to which the business is liable, is obvi-^ ously just and reasonable. It does not exempt the Company' from responsibility, but only fixes the price of that responsibility, and allows the person who sends the message, either to i transmit it at his own risk, at the usual price, or by paying, iii / addition thereto, half the usual price, to have it repeated, and thus render the Company liable for any mistake that may/ — occur.

The plaintiff must, therefore, be regarded as having sent the message in this case at his own risk, inasmuch as he failed to have it repeated, and consequently the Company was not liable for the mistake. It is unnecessary, therefore, to decide whether the plaintiff was legally responsible for the sixteen cents per gallon for the whisky, or only for the price which he actually offered.

Wherefore, the judgment of the chancellor dismissing the plaintiff’s petition is affirmed.  