
    Albert G. Wolfskehl, Respt, v. The Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    1. Telegraph companies—Both sender and receiver op a telegram HAVE A REMEDY BY ACTION POR NEGLIGENCE OP COMPANY.
    The person to whom a telegram was sent sued the telegraph company for damages resulting from the omission of a word from the message as sent. On demurrer, held, that the service and duty were undertaken by the company for the benefit of both the sender and receiver of the message and either party sustaining damages from the negligent performance of such duty has a remedy by action against the company for their recovery.
    3. Same—Common carriers to certain extent.
    Telegraph companies are bound to exercise care and diligence adequate to the obligations they assume, to transmit messages safely and correctly and avoid errors and mistakes, and in this sense they are common carriers and so, much of the law of common carriers becomes applicable to them.
    Appeal from a judgment in favor of .plaintiff overruling defendant’s demurrer to the complaint entered at the Xlngs county special term.
    
      Horace Graves, for resp’t; Dillon & Swayne, for app’lt.
   Dykman, J.

This is an action by the receiver of a telegram against the defendant based upon the negligence of the company in the transmission of the message.

The complaint charges the negligent omission of the word “not ” from the message and its delivery to the plairiiff in that changed condition, and his action upon the incorrect message by which he sustained damage.

The defendant demurred to the complaint, and the trial court overruled the demurrer and the defendant has appealed from the judgment.

It is the insistence of the defendant in this action that it owed no duty to the plaintiff in the transmission of the message to him because it sustained towards him no contractual relation, and that only such persons as sustain a relation to the company by contract can have a remedy against it. The question presented is of very great importance to the public and the telegraph companies, and neither the elementary writers nor the adjudicated cases furnish us much assistance in its solution. They are quite inharmonious and unsatisfactory and threw but little fight upon the question.

While telegraph companies have not been made chargeable with the absolute liability of common carriers, yet they are engaged in a public employment for hire, and bound to exercise care and diligence adequate to the obligations they assume, to transmit messages safely and correctly and avoid errors and mistakes and in this sense they are common carriers; and so much of the law of common carriers becomes applicable to telegraph companies.

They undertake to transmit communications from one to another, and they hold themselves out to the world as. possessing the skill and ability to perform that service with accuracy and dispatch.

They thus undertake the performance of a peculiar service for a stipulated reward paid either by the sender or the receiver, but the service and duty is undertaken for the benefit of both, and either party sustaining damages from the negligent performance of such duty should have a remedy by action against the company for their recovery.

It seems consonant with the settled principles of the law to hold the defendant responsible to the plaintiff in this action.

The judgment should be affirmed, with costs

Barnard, P. J., and Pratt, J., concur.  