Bartlett v. Western Union Telegraph Co. The defendants' liability is purely matter of contract. Playford . U. K. Tel. Co., 10 Best & Sm. 759. They are not common carriers. See cases cited supra; Ellis v. Am. Tel. Co., 13 Allen, 226; Leonard v. N. Y. Tel. Co., 41 N. Y. 571; Birney v. N. Y. Tel. Co., 18 Md. 341. York Co. v. Cent. R. R. Co., 24 N. If they were, they could limit their liability. See The limitations upon this blank are reasonable and proper. cases cited supra; McAndrew v. Tel. Co., 33 Eng. L. & Eq. 180; Mann v. W. U. Tel. Co., 37 Mo. 261; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; Ames v. N. Y. Union Ins. Co., 14 N. Y. 256; Ripley v. Etna Ins. Co., 30 id. 136; Roach v. N. Y. & E. R. R. Co., 30 id. 548. DANFORTH, J. On the 12th day of July, 1870, the plaintiffs left with the defendants a message to be sent from Gardiner to Chicago, by night, directing the purchase of ten thousand bushels choice No. 2 high-mixed corn. As received by the persons to whom it was addressed, it read one thousand instead of ten thousand bushels. In consequence of this error a loss ensued, which the plaintiffs claim the defendants are legally liable to make up to them. 66 Upon the blank used we find printed a provision as follows: 'The Western Union Telegraph Company will receive messages for all stations east of the Mississippi river, to be sent during the night at one-half the usual rates, on condition that the company shall not be liable for errors or delay in the transmission or delivery, or for non-delivery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender. "No claim for refunding will be allowed, unless presented in writing within twenty days." Then follows next above the written message, the words: "Send the following message subject to the above terms, which are agreed to." It is now contended that this provision, either as a rule established by the company, or as a contract entered into by the parties, relieves the defendants from all liability in this action. If the condition is of binding force, either as a regulation or contract, such clearly Bartlett v. Western Union Telegraph Co. would be its effect. The signature of the plaintiffs, obtained without fraud, would be conclusive proof of their knowledge of it as a rule, whatever it might be in regard to their assent to it as a contract. That a telegraph company may make all proper and needful rules to enable it with convenience and dispatch to do the business of its customers, is now unquestioned. This may be done even without the consent of those doing business with it; knowledge alone being sufficient to bind them. With a contract it is entirely different; that can be binding only upon those who assent to its terms. It has been held in many cases that a company may make rules limiting its liability in certain cases, and perhaps it is now too late to deny this proposition, though it seems to be materially enlarging the meaning of the term, when a power given to a corporation or an individual to regulate the manner or method of doing business with the public is converted into a means of limiting the liability which by law is attached to that business. But, however that may be, all courts agree that a rule to be of binding force must be reasonable, whether its purpose is to facilitate business or limit liability. There may be a wide disagreement as to whether any given rule is reasonable, but none, it is believed, as to its wart of validity, when its unreasonableness is once conceded. In True v. International Telegraph Company, 60 Me. 9; and S. C., 11 Am. Rep. 156, a rule similar to the one now in question was held to be unreasonable and therefore void. After a careful re-examination of that case, and the reasoning upon which it is founded, we see no reason for changing the conclusion there reached. It is claimed that this case differs somewhat from that. This is true as to some of the facts, but not as to the principle of law applicable. So far as the rule goes, it is in effect the same, or if in any thing different, the one now before us is more clearly unreasonable. While it was possible to construe the former so as not to include exemption from damages, arising from the neglect of the company, or want of skill or care on the part of the employees, the language of the latter will admit of no such meaning. To prevent any possibility of such an interpretation, we find inserted the words "from whatever cause occurring." Then as to the facts, in the former case, there was no delivery of the message, and no reason given for its non-delivery, while in this case an effort Bartlett v. Western Union Telegraph Co. seems to have been made to transmit the message, and one was delivered though materially different from that sent. It is claimed that, in this respect, there is such a difference between the cases, that the two cannot rest upon the same principle. Some of the cases seem to countenance this view on the ground that a neglect or refusal to perform or to enter upon a performance, presents a question very materially differing from any that can arise on an error or mistake in performing. But the rule itself makes no such distinction. The error in transmission and non-delivery are put upon the same ground; and absolute exemption from liability in each case provided for, whatever may be the cause producing it. Now, it is very clear that negligence may be quite as injurious in the one case as in the other. It may often be that an erroneous message delivered, will cause more damage than non-delivery, and if the company, for any reason, choose to suppress the information sent, it is quite as easy to do it by forwarding a different message, as by suppressing it. It is because of its broad provisions covering every case of non-fulfillment of duty, under the law, that we declare the rule unreasonable. In a case like this, where a party has assumed a public or quasi public employment, one which has become a commercial necessity, and to which business people must necessarily, more or less, resort, and in which they must trust cntirely to servants, in the selection of whom they have no voice whatever, it would seem that there could hardly be a difference of opinion, as to the unreasonableness of a rule which opens so wide a door for the immunity of negligence, if not of fraud. Though it may admit of serious doubt, whether public policy would permit persons or companies occupying the relation to the business community which the defendants in this case do, to limit in any degree the liability imposed upon them by law, in view of the many decisions from courts of the highest respectability allowing it, we do not wish to be understood as denying it, nor, indeed, have we any occasion to do so in this case. We are not unmindful that many cases have been cited, and relied upon, as supporting the binding force of the rule invoked by the defendants in this case, and some of them apparently (perhaps really) do so, while quite as many of them may be explained consistently with, if not directly sustaining, the view which we have taken. They all so construe the rule passed upon, as not VOL. XVI. — 56 Bartlett v. Western Union Telegraph Co. exempting from, or limiting, the liability imposed by law, arising from a want of the requisite skill or care, and in most or all of the cases such a construction flows naturally enough from the language used, while no such meaning can be given to the one now under consideration. It is true it might be held applicable to such cases as come within the authority of the company to limit their responsibility, and inapplicable to damages arising from negligence or fraud. But in so doing, we must necessarily expunge a portion of the words used, and thereby establish for the company a rule materially different from that ordained by themselves. We can only construe rules and contracts, and not make them. It will be noticed that the rule of these defendants in relation to night messages, that which we are now considering, has no provisions for repeating the message, a provision upon which many of the cases rest. Such are the cases of Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164 (Allen on Telegraphs, 85); McAndrew v. The Electric Tel. Co., 17 C. B. (3 Allen, 38); Breese v. U. S. Tel. Co., 45 Barb. 274 (Allen, 663). Hence in these cases and others of the like kind, the precise question now before us was not raised. The same provision is found in Ellis v. American Telegraph Company, 13 Allen, 226, and also the further provision pledging the company to good faith in their endeavors "to send messages correctly and promptly," thereby authorizing, and even requiring the construction put upon the rule that it did not provide against want of skill or care, and while in that view the rule is held to be reasonable, it is said in the opinion: "Of course, a party cannot in such way protect himself against the consequences of his own fraud or gross negligence, or the fraud or gross negligence of his servants or agents. Nor can he escape all liability or responsibility in the performance of the service or duty which he undertakes." Warren v. Western Union Telegraph Company, 14 Mo. 472, is founded upon the same provision requiring the message to be repeated, and holds also, that the rule does not, and cannot, exempt the company from the consequences of gross negligence. Sweatland v. Ill. & Mo. Tel. Co., 27 Iowa, 432; 1 Am. Rep. 36, is to the same purport. In this last case, DILLON, C. J., remarks: "The considerations mentioned by the appellants are quite sufficient to justify the court in holding reasonable the condition as tc repeating messages, and exempting it from liability for mistakes in Bartlett v. Western Union Telegraph Co. unrepeated messages, occasioned by unavoidable or uncontrollable causes, provided proper instruments have been used, and proper care and skill exercised by the company's employees to avoid or prevent mistake." Again, he says: "But I deny that companies can adopt general printed rules, exacting as a condition of sending messages, that the sender shall exonerate or release the company from damages caused by defective instruments, or by the want of proper skill in the operators, or by their failure to use due care." To the same effect is hedfield on Railways (3d ed.), 244. In Shearman & Redfield on Negligence, § 565, near the end, it is said: "We certainly think that such rules should be held void; and being illegal in their terms and plain import, they ought not to be given effect, even in those cases which might lawfully be provided for, and which are covered by their terms." Thus most, if not all, the cases upon this subject refer to rules requiring the repeating of messages to insure accuracy, and seem to be justified in their conclusion, on the ground that owing to the liability to error, from causes beyond the skill and care of the operator, it is but a matter of common care and prudence to have the messages repeated; the neglect of which in messages of importance, after being warned of the danger, is a want of care on the part of the sender, and as the person sending the message is presumed to be the best judge of its importance, he must on his own responsibility make his election whether to have it repeated. These cases also hold with great, if not entire, unanimity, that even under such circumstances, the company can only limit, but not take away their entire liability. If the doctrine of these cases be sound, the rule invoked in the case at bar must necessarily, as a rule, be void. In its very terms it relieves the company from all liability for any errors, delays, or omissions, "from whatever cause occurring." But it is elaborately, as well as ably, argued in the defense, that here is a contract, fairly and intelligently entered into by the parties, and by the terms of that contract their rights and liabilities must be governed. While we concede that a party may sometimes limit his liability by special contract beyond what he can by a rule or regulation, yet it is settled, on a foundation too firm to be shaken, that even contracts in violation of good faith and public policy |