The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1888-06-16
IMPORTANT LAW DECISION.
Telegraph Companies Not Strictly
Common Carriers.
They are Bound to Use only ordin-
AIRY Care.

The case of Henry j. Fowler against the
Western Union Telegraph Company has lust
been decided by the Law Court. The case
went up to the Law Court on a report of the
testimony of 1885. The plaintiff is pork
packer doing business in this city under the
firm name of Thompson Fowler & Co. He was
In the habit of buying his hogs in Chicago
by the car load, through correspondent, at
the Union Stock Yards. On the goth of Aug
ust, 1888, he sent night message to his cor
respondent to ship the next day one car load
of hogs, paying forty cents for the telegram.
The despatch was never delivered. The tes-
timony on the part of the company was that
fire broke out in their main office in Chica-
go on that day, destroying all the messages
in the office at the time; that the fire was
caused by moisture gathering on the back of
the switch board, making connection or
crossing between wires connected with
heavy batteries, setting the board on fire.
The plaintiff claimed that the company
was negligent in this particular The de-
PENDANTS commended, and introduced tes-
timony to show, that there are no improve
ments known to the art in use anywhere
that will guard against the possibility of fire
occurring on switch board by moisture col
Letting between wires and forming partial
connection, under certain conditions of the
atmosphere. The plaintiff claimed that by
reason of the non-delivery of the message he
was without hogs to slaughter for three
days, and was prevented from packing pork !;
that his operatives employed in his factory
were idle during that time and he thereby
lost large gains and profits.
The defendant company claimed that un-
der the printed clause on the night message
blank they were not liable, as the telegram
was not repeated message. The clause
provides that the company will receive mes
sages to be sent, without repetition during
the night and upon the express
condition that the sender will agree that he
will not claim damages for errors or delays,
or for non-delivery of such messages, hap
pening from any cause, beyond sum equal
to ten times the amount paid for transmits
sion."
The decision is for the defendants, with
the following rescrpt by Judge Foster"
stipulation or regulation of a telegraph com
pany that It will receive messages to be sent with
out repetition during the night for delivery not
Soih~i udii uloIuiuS Vi tlit utAI ensuing DuS-
mess day. at reduced rates. on condition that the
sender will agree that he will not claim damages
lor errors or delays or for non-delivery of such
messages, happening from any cause, beyond a
sum equal TO ten times the amount paid for trans
mission" although assel,ted to by the sender Is
unreasonable and void as against public policy.
Although telegraph companies are engaged i'm
wnat may be appropriately termed public EN-
| ployment, they ere not common carriers in the
strict sense of the term.
In the absence Of any contract or regulation
modifying their liability they do not insure abso-
lutely Tile safe and accurate transmission of mes
sagcs as against all contingencies.
The degree OF care which they are bound to use
| is ordinary cate and that is to be measured with
reference to the kind OF business in which they
are engaged.
They are bound to have suitable instruments
ana competent servants, and to see that the ser
vice is rendered with that degree of care and
skill which the parti ular nature of the updertak-
ing requires but the duty does not impose iiabil-
lty upon them tor want of skill or knowledge NOT
reasonably attainabe in the art nor for errors OF
imperfections Which arise from causes not within
lher control or which are not capable of being
| successfully guarded against.
In an action against a telegraph company TO re-
cover damages for not delivering message the
plalntn makes out a prinlo fdcie case when he
| shows that the message which the company I'M
dertook 10 send was not delivered, and that dam
| age has resulted.
The burden is then upon the company TO show
tnat the failure TO deliver was caused by some
| agency for which ii is not liable.
Judgment is given fol defendent.