The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-08-01
An Important Decision Regarding
tho Liability OF Telegraph
Companies.
The Conditions Printed ON the
COmpanS's BLANKS Held
to be Good.

| Don't tall. y. ID. CARE".
And paid for its transmission one dol
lar and ninety-ive cents, the price oi
an unrepeated message from Detroit to
| Baltimore. ---.z-r. too
On the face of the paper upon which
the message was written was printed
the following, Immediately above the
| written message:
"Western Union Telegraph Compa-
ny-Commercial Message. (See condi-
tions on back.) Write plaiuly. Give
| full address. Use no abbreviations or
figures. Send the following message,
| without repeating, subject to the above
conditions and agreement indorsed on
| back"
on the back OF same paper, in full
and cIear type, was printed the follow
ing:
western Union Telegraph Company.
In order to guard against and correct
as much as possible. some OF the errors
arising from atmospheric and other
causes appertaining to telegraphy, eve
ry important message should be re-
pedted, by being sent back from the
station at which it is received 10 the
station from which IL is originally
sent. l-
"Half the usual price will be
c! arged for repeating the message; and
| while this company in good faith will
endeavor 10 send messages correctly
and promptly, 1t will not be RESPONSE
| BILE for errors or delays in the trans
mission or delivery, nor for the non.
delivery OF repeated messages, beyond
200 hundred times the sum paid for
sending the message, unless special
| agreement for insurance be made in
writing, and The amount OF risk speci-
fled on this agreement, and paid at th5
time of sendiug the message. Nor VIII
the company be responsible Tor error
or delay in the transmission or deliv-
cry, or for the non-delivery, of any H1l-
repeated message. beyond the amount
paid for sending the same, unless In
like manner specially insured, and
amount OF risk stated hereon, and paid
for at the time.
mo liability is assumed for errors III
cipher or obscure messages; nor Is any
liability assumed by the company for
any error or neglect by any other
company over whose lines this mes
sage may be sent to reach Its destina-
tion, and this company Is hereby made
the agento the sender of this message
to forward it over the lines extending
beyond those of this company.
"No agent or employe is allowed to
vary these terms or to make any other
or verbal agreement, nor any promise
as to the tune of performance, and no
one but Superintendent is authorized
TO make special agreement.
"Thesel terms apply through the
whole course of this message on all.
lines by which it may be transmitted"
The plaintiff below testified, and
there was no evidence to the contrary,
that he never read the above conditions
nor had his attention called 10 themi
that he was not informed nor did he
know that the message passed over the
| line of any other company on It's way
| to Baltimore, or that it was necessary
to repeat the message in order to hold
| the company responsible for mistakes.
| The line of this company extends
only to Philadelphia. The message
was correctly transmitted TO that point
and there correctly delivered to the
agents OF the line from Philadelphia TO
Baltimore. But when received at Bal
timore the message read "iour cases"
| instead of $40" and the four cases only
were sent by Rowe, Schoteld q Co..
and this action Is brought to recover
the damages resulting from this error.
The court charged the jury: .-4lEF,
| l. That the plaintiff was not, bound
| by the conditions on the back OF the
dispatch unless his attention was called
| to them.
| .. That 1t is immaterial on which line
l the error occurred, defendants having
received the pay for the proper trans
mission of the dispatch from Detroit to
| Baltimore.
| 8. That If the plaintiffs attention was
not called to the necessity of repeating
the message in order to secure its cor
| rect delivery, he was not bound to do SO
| to entitle him to recover.
To each of these charges exception
| was taken, and the court was requested
hut refused to charge directly the con-
trary, and that there was fatal Varl-
ance between the contract declared up
| on and that proved, (the declaration
being upon an absolute understanding
to send to and deliver the message at
| BalIimore.) E'E- re sHa
II the printed request on the face of
| the paper, 40 send the message, With
out repeating, subject to above condi-
! tions and agreement on back" ;" togeth-
\ er with the terms and conditions refer
/ red to, constituted or governed the con-
tract for transmission, then the entire
charge OF the court was wrong, and the
plaintiff below had no right to recover.
The competency of the parties to en-
ter into such contract Is not denied;
but 1t is insisted that telegraph COM
| pAnies are common carriers; that car
riers cannot limit their common law
liability by mere notice, because the
other party has the right to insist upon
having his goods carried by them, sub
iect TO their common law liability, n ot-
withstandlng the notice; that the par
ties employing them are not bound to
/ nav any attention to such notice, and to
exempt the carrier from such liability,
IL must be shown not only that the no.
tice was brought home to the party
dealing with him, but that he actually
assented 10 the terms. -l t--r aua
We do not deem 1t necessary to dis
cuss the case upon this theory. Our
j opinion upon its application 10 carriers
/ will be expressed in the several cases
of the Michigan Southern & Northern
Indiana :RaiIroad Company, now be-
fore us. We are all agreed that tele-
graph companies, in the absence OF
any provision of statute imposing such
liabilities, are not common carriers,
i and their obligations and liabilities are
not to be measured by the same rules;
that they do not become insurers
against all errors in the transmission
or delivery of messages, except so far
as by their rules and regulations, or
by contracts, or otherwise, they choose
to assume that position, or hold them
selves out as such to the public or to
those who employ them. The statute
OF this State authorizing such compR>
nies, and to some extent prescribing
their duties and liabilities, imposes no
such liability. Compiled Laws, Chap
ter 7O.) Impartiality and good faith
are the chief, il not The only obligations
, REQUIRED by the statute SO far as relates
10 the question here involved. Beyond
these statute reQuirementst their obIiga-
tions must be liked by considerations
growing out of the nature of the busi-
ness in which they are engaged, the
. character of the particular transactions
which may. arise in the course of their
business, and the application of the
, principles of justice and public pol
-licy recognized alike by common sense
land the common law, The statutes ol