
    John Elsey, Resp’t, v. Postal Telegraph Cable Co., App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 3, 1888.)
    
    Telegraph Company—Liability to receiver oe message for negligence IN ITS TRANSMISSION.
    A merchant in Michigan sent a message by the Postal Telegraph Company ordering the shipment of 5,' 00 oysters. He wished to send the order to P. Ellsworth, but not recollecting the name, addressed P. Elsey. By the mistake of the operator this was received as H. Elsey. The person in charge of the office, not finding the name in the directory, sent the message to J. Elsey, a fish and oyster dealer, concluding that the dispatch was meant for him. He filled the order and shipped the oysters, which were refused by the merchant, and became spoiled. Elsey thereupon sued the Telegraph Company. Held, that a telegraph company is liable in damages to the receiver for mistakes in transmission of message. Following De Butte v. New York, Albany and Buffalo Telegraph Co., 1 Daly, 647.
    
      A. W Kent, for app’lt; Blandy & Hatch, for resp’t.
   Van Hoesen, J.

A Mr. Canham sent, by the Postal Telegraph Cable Company from Port Huron, a dispatch ordering the shipment to him of 5,000 oysters. Mr. Canham wished to send the dispatch to a Mr. P. Ellsworth, an oyster dealer of the city of New York, but being unable to recall the name of Ellsworth, wrote in its stead the name of Elsey, so that the dispatch was addressed to P. Elsey, New York. In telegraphic characters the letter P. is represented by five dots and the letter H. by four dots, and the omission of a single dot resulted in the changing of the address from P. Elsey to H. Elsey. The person in charge of the New York office consulted the New York Directory, and not finding any H. Elsey in its list of names, concluded that the dispatch must be intended for John Elsey, a fish and oyster dealer of Washington Market, and, therefore, altered the address by changing the letter H. into the letter J. The dispatch, so altered, was delivered to John Elsey, who filled the order, and shipped the oysters to Canham, who refused to receive them, saying that the man he dealt with is P. Ellsworth, whose name he then recollected. The oysters were spoiled, and Elsey brings this action against the Postal Company, claiming the value of the oysters, together with the cost of transportation.

According to the English decisions, the defendant would be entitled to judgment in its favor. The English courts hold that the liability of the telegraph company to the recipient of a message could arise only from the negligence of the company; that there can be.no negligence unless there be a duty owing by the party in default to the party aggrieved; and that such duty must arise either out of a contract, or of some rule of law; that the sender has, but that the person to whom the message is delivered has not, a contract with the company, so that the supposed duty does not arise out of contract; and that the law has not imposed upon the company any duty growing out of consideration of public policy. Said Baron Bramwell, in Dickson v. Reuter, 30 Moak’s Eng. Rep., 1: “I hold that the duty as implied by law, requires that the law shall be altered so to make a person liable for a misrepresentation made carelessly, but without evil intent. But .'it is never laid down that the exemption from liability for an innocent misrepresentation is taken away by carelessness. It is argued that the consequences will be as mischievous if this action be not maintainable. I am not of that opinion. If a person should be held liable for a negligent misrepresentation, made bona fide, a great check would be put upon many useful and honest communications, owing to a fear of being charged with negligence. The company is liable to the sender of the message, and that is a security for the proper delivery of messages, apart from the natural desire to carry on business properly, so as to gain customers.”

That view of the rights of recipients of messages has never been accepted in this country. In the early case of DeRutte v. N. Y., Albany and Buff. Tel. Co., 1 Daly, 547 (decided in March, 1866), it was decided that the recipient, might maintain an action against a telegraph company for damages resulting from negligence in the transmission of a dispatch, and from that time to this, the courts in most of the states have uniformily held the same way. The follow-' ing are some of the cases in which persons who received messages without any contract with the telegraph company have been compensated in damages for injuries arising from the negligence of the company in transmitting dispatches:’ Ellis v. Am. Tel. Co., 13 Allen, 226; Rose v. U. S. Tel. Co., 3 Abb., N. S., 408; Harris v. W. U. Tel. Co., 9 Phil,, 88; De la Grange v. S. W. Tel. Co., 25 La. An., 383; Aiken v. Tel. Co., 5 S. C., 358; Hadley v. W. U. Tel. Co., 15 N. E. Rep., 849; Wadsworth v. W. U. Tel. Co., 8 S. W. Rep., 580; Pearsall v. W. U. Tel. Co., 9 N. Y. State Rep., 132; Elwood v. W. U. Tel. Co. 45 N. Y., 549; N. Y. Tel. Co. v. Dryburgh, 35 Pa. St. 298.

Among American text-books, the following assert that the recipient of a message, if damaged by an error negligently made by the company, may recover damages: Codey on Torts (2d ed., p. 775); Wag. on Tel., sec. 65; Wharton on Neg., sec. 758; Sutherland on Dam., vol. 3, p. 314; Shearman & Red., sec. 560; Thompson on Neg., vol. 2, p. 847.

The same reason for holding the company liable to the recipient of the message for negligence, has not, at all times, been given by American courts and text-writers. Sometimes it has been said that the principle enunciated in Lawrence v. Fox (20 N. Y., 268), controlled, and that the company and the sender of the message, when they contracted for the sending of the dispatch, did so with a view to the benefit of a third party, namely: the person to whom the message was sent. In such a conjecture, the person whose benefit the contracting parties had in contemplation, may maintain an action if injured by the non-performance of the contract. Hadley v. W. U. Tel. Co., 15 N. E. Rep., 849; Shear & Red. on Neg., sec. 560.

In other cases, the liability of the company is placed upon the ground that the company has a quasi public employment, and enjoys the benefit of the right of eminent domain, and that the multitude and importance of affairs daily transacted upon the faith of the intelligence it conveys, makes it expedient to require that the business shall be done without negligence. Nowhere has the question been considered with greater breadth and clearness than in the opinion of Chief Justice Daly, in the De Rutte Case (supra), in which it is said: “ If we leave out of view altogether the question with whom was the contract made, the defendants would still be hable to the plaintiff for putting him to loss and damage through their negligence in transmitting to him an erroneous message. The law upon this subject is as yet undefined, for the business is of recent origin. I have pointed out this distinguishing feature, that though pursued for reward, it is for the general convenience of the public. Like the business of common carriers, the interests of the public are so largely incorporated with it, that it differs from ordinary bailments, which parties may enter into, or not, as they please.

In the state of New York it is made by statute the duty of the companies to transmit dispatches from and for any individuals with impartiality and good faith.

Common carriers are held to the responsibility of insurers for the safe delivery of the property entrusted to their care, upon grounds of public policy to prevent frauds or collusion with thieves, and because the owner having surrendered the possession of his property, is generally unable to show how it was injured or lost. These reasons which are the ones usually assigned for the extraordinary responsibility of common carriers, cannot be regarded as applicable to the same same extent to telegraph companies, nor are there any reasons, in my judgment, why they should be held to the extent of insurers for the correct transmission of dispatches. As their business, however, is one that leads to their being intrusted with confidential and valuable information, especially in commercial matters, there are opportunities for frauds and abuses, which in view of the relation they occupy to the public, make it necessary upon grounds of public policy, that they should be held to a .more strict accountability than ordinary bailees.

As the value of their services consists in the message entrusted to them being correctly and diligently transmitted, it must be taken for granted that they engage to do so, and if there is unreasonable delay or an error committed, it should be presumed that it arose from their negligence, unless they can show it occurred from causes-beyond their control.

It seems to me that the better ground on which to place the liability of the company for negligence, is that the law, from considerations of public policy, will, to quote the language of Chief Justice Daly: “ take it for granted that the company, by accepting the message for transmission, impliedly promises both sender and recipient that it shall be forwarded with care commensurate with the importance of the work.

. Of the negligence of the defendant in this case, there can be no question. No matter how good the motive of the man in the New York office, and there can be no doubt that he honestly believed that he was acting for the best, he had no right to alter the address. so as to make it suit some name, that he found in the directory. The defendant is liable, and the damages are, first, the value of the oysters, and secondly, the cost of sending them to Port Huron.

Judgment affirmed.

Bookstaver, J., concurs.  