Vol. I.] BRADY V. AMERICAN STEAMSHIP CO. [No. 9. essary and proper for the exigency. He thus averted until the termination of the storm, whatever danger may have been caused by the unfortunate loss of the master. I think that this was a salvage service. The difficulties in the way of so deciding are great. But those in opposition to a contrary decision would be greater. It is true that when the third officer succeeded of right to the command of the vessel, he might have ordered the libellant to take the watch during the emergency. The libellant would certainly have been compellable to go to the wheel-house. If he had been directed, when there, to act as officer of the deck, it would, I think, have been his duty to obey, and to execute the office to the best of his ability. Had he done so, under such orders, I do not, as at present advised, think that it would have been a salvage service. But, without orders, he was not compellable to decide who should have the watch, or to take upon himself the direction, with its cares and responsibilities. At the crisis of danger there was no means of organizing the internal government of the vessel, unless through immediate energetic action of the third officer. That officer did not thus act. The libellant was, therefore, justifiable, under the law of maritime necessity, in acting upon his own responsibility, as officer of the deck. There was, at this time, therefore, no usurpation of unlawful authority by him. This being so, his conduct thus far was meritorious and highly beneficial; and the service was, under the circumstances, extraordinary. It was a peculiar service for one who was not of the crew to take the command of the watch without being assigned to it. On the next morning, the storm having ceased or abated, and no special danger continuing to exist, the chief engineer and the purser, and some others on board, without consulting the third officer, whose authority alone they should have recognized, wrongfully assumed upon themselves to offer the command of the vessel to the libellant, and urgently invited him to assume it as master. He very improperly did so. He did not consult the third officer, but nominated him as first officer. It is contended that the third officer acquiesced in what would thus otherwise have been a usurpation. An English judge has recently said that quiescence is not acquiescence. Mere enforced submission certainly is not. third officer here submitted, but did not acquiesce. The The libellant continued to act in this usurped relation of master of the vessel for several days, until she reached the port of destination. On her arrival, the owners, who are here defendants, gave thanks, in writing, to the libellant, as for extraordinary services, and offered him what would have been a liberal gratuity for meritorious conduct if he had been an officer of the vessel. But the amount offered was greatly below the least possible estimate of compensation for a salvage service. He now alleges that he became of right master of the vessel, and thus rendered a continuing salvage service. This unfounded pretension is of course rejected. The question then arises, whether through his usurpation of the command of the vessel after the storm, he has incurred a forfeiture of the salvage compensation to which he was otherwise entitled for his prior service. Vol. I.] DORGAN V. THE TELEGRAPH COMPANY. [No. 9. I do not think that under the peculiar circumstances of the case an absolute forfeiture of the whole amount was incurred retroactively by his assumption and exercise of the illegitimate authority. But the effect of this usurpation must necessarily be to reduce very materially the amount which would otherwise be awardable to him. What the reduced amount ought to be is not easily determinable. I have hesitated between three thousand and four thousand dollars, and have determined on the greater sum, partly because I think that the defendants' letter of thanks almost invited the litigation which has followed, and, though not so intended, must have induced a high estimate by the libellant of the value of the service. Costs are adjudged to the libellant; but under the head of depositions, taxable costs will not be allowed to an amount exceeding two hundred dollars. The testimony is of great bulk, but of no proportionate weight; and its excess in bulk ought not to be allowed to swell the costs. Decree for libellant for four thousand dollars, provided that, under the head of depositions, costs exceeding two hundred dollars will not be taxed or allowed. CIRCUIT COURT OF THE UNITED STATES. [APRIL, 1874.] NEGLIGENCE BY TELEGRAPH COMPANY EXPOUNDED. MESSAGE. DELAY IN DELIVERY. DORGAN v. THE TELEGRAPH COMPANY. A telegraph company undertakes to receive and transmit by telegraph, and to deliver, without unnecessary delay, according to directions, the messages offered for transmission. Where a message was left at the office of defendant in New York at about twenty minutes after five o'clock P. M. for transmission to Mobile, Alabama, and was not delivered at the office of the person addressed until half past ten o'clock the next forenoon, and it appeared that under ordinary circumstances it would only require four minutes to transmit the message, and the plaintiff had paid uninsured day rates for its transmission, the court instructed the jury that the facts made out a primâ facie case of negligence. Those who use the telegraph as a means of communication, unless they insure the delivery of their messages, take the risk of delay and failure of their messages to reach their destinations arising from the accidents and obstructions to which telegraphic lines are liable. It is the duty of a telegraph company to transmit messages impartially in good faith and in the order in which they are received. Therefore, if the company proved that the delay in the transmission of the message was not owing to the carelessness or negligence of its agents, but to obstructions in the line which the company could not foresee or prevent, or that the delay arose from the observance of the rule that messages must be sent in the order in which they are received, then the prima facie case of negligence is overthrown. Vol. I.] DORGAN V. THE TELEGRAPH COMPANY. [No. 9 Whether it is negligence to fail to deliver a day message received after ten o'clock r. M. will depend upon the circumstances of the case, and the jury was directed to pass upon the question of negligence according to the facts as they should find them. If the damage suffered by the plaintiff from the negligence of the company might have been avoided by the use of ordinary diligence by the plaintiff, in that case the plaintiff cannot recover. The plaintiff can only recover such damages for the failure to transmit and deliver his message as were within the reasonable contemplation of the parties when the contract for transmission was made. If the sender of a message, at the time he left it for transmission, informed the telegraph company that it was important, and the dispatch itself indicated that it was a business message, and that serious damage might result if it was not promptly sent, the company would be liable for any damage which might be the result of negligent delay in sending the message. But if the message was so worded as not to show that damage might follow delay in sending it, and the company was only told that it was important and requested to send it immediately, in such case the telegraph company would only be liable for nominal damages. If negligence occurred in the delivery of the message after it had reached its office of destination and the message did not indicate its own importance, then the sender would only be entitled to nominal damages, no matter what might have been said at the other end of the line touching the importance of the message. A telegraph company cannot contract for immunity from liability for the non-delivery of a message after it has reached its office of destination. Such a contract is against public policy and void. THIS cause was tried by Woods, Circuit Judge, and a jury at the April term, 1874. The facts sufficiently appear in the charge of the court. Messrs. Harry T. Toulmin & D. P. Bestor, for plaintiff. Messrs. Thomas H. Herndon & John Little Smith, contra. Gentlemen of the Jury, -The following facts are not controverted: At about eleven o'clock A. M. of the 30th of January, 1872, the plaintiff sent from Mobile, Alabama, over the lines of the Western Union Telegraph Company to New York city, the following cipher dispatch: — "To J. S. Abbott & Co., New York: "Sell Samuel basis silver full style and staple fob dog demon. Reply to-day; have refusal." Which, when translated, reads as follows: "Sell 500 bales, basis middling, full style and staple, free on board at 21 cents, atpenny freight. Reply to-day; have refusal." This dispatch was transmitted to New York and there delivered without unreasonable delay to J. S. Abbott & Co. On the same day, sometime between twenty and forty minutes after five o'clock P. M., New York time, J. S. Abbott & Co. delivered to the receiving clerk at the main office of defendant, in New York, to be transmitted over the lines of defendant to the plaintiff in Mobile, the following cipher dispatch, the same being in response to the dispatch sent by the plaintiff to J. S. Abbott & Co: "Sold Samuel, basis silver, fob dog demon, prompt shipment, draw No. 9.] DORGAN V. THE TELEGRAPH COMPANY. [Vol. I. The with documents. Edward Dobell. Insure. Telegraph drafts." meaning of this dispatch was not communicated to the defendant or its agents, but the clerk who received it was told it was important, and requested to forward it immediately. A majority of persons who send messages by telegraph say to the receiving clerk that their messages are important and request that they be sent at once. This dispatch translated would read: "Sold 500 bales, basis middling, free on board at 213 cents, freight penny; prompt shipment. Draw with documents on Edward Dobell. Insure against fire. Telegraph drafts." The dispatch was received in Mobile at ten o'clock P. M. of January 30, but was not delivered to the plaintiff in Mobile until half past ten o'clock A. M. of the next day. The time required to transmit a message of ordinary length from New York to Mobile, when the lines are in good order and there is no other message having the precedence, is about four minutes. On January 31st the plaintiff bought five hundred bales of cotton in Mobile to fill the contract of sale referred to in the dispatch to him, at the price of fifty-four thousand one hundred and ninety-nine dollars and twenty-eight cents, and the same cotton could have been purchased in Mobile on January 30th for eight hundred and ninety-nine dollars, and fortythree cents less than that sum. New York time is fifty-five minutes faster than Mobile time, so that when it is five o'clock P. M. in Mobile it lacks but five minutes of six P. M. in New York. J. S. Abbott & Co., to whom the plaintiff's message was addressed and who sent the reply, were the agents of the plaintiff in New York, and the plaintiff paid for both dispatches. He paid for the dispatch from J. S. Abbott & Co., three dollars and sixty-nine cents, which was the usual day rates for unrepeated and uninsured messages. The message sent by J. S. Abbott & Co. was written upon the blanks furnished by the defendant for day messages, and upon which it required day messages to be written. The business office of plaintiff in Mobile is but one or two blocks from the office of defendant, and his residence about a mile or a mile and a half. It is the custom of the defendant at half-past nine o'clock P. M. to dismiss its messenger boys for the day, and at ten o'clock P. M. to close its office. The plaintiff before January 30th 1872, had done much business with the defendant's office in Mobile. The plaintiff alleges that the delay in not delivering the dispatch sent by J. S. Abbott & Co. to him until January 31st was the result of the carelessness and negligence of the defendant and its agents, and that he suffered damage to an amount equal to the difference in the value of five hundred bales of cotton in Mobile on the 30th and of the same quantity of cotton in Mobile on the 31st of January. To the declaration of the plaintiff setting up this claim, the defendant pleads a general denial of the case stated by the plaintiff, with leave to introduce evidence in proof of any matter that might be specially pleaded. The defence as really made amounts to this: (1.) That generally the averments of the declaration are not true. Vol. I.] DORGAN V. THE TELEGRAPH COMPANY. [No. 9. (2.) That there was no negligence or carelessness on the part of the defendant in transmitting or delivering the message. (3.) That if the plaintiff suffered damage from the neglect of defendant, he contributed to the damage by his own neglect and carelessness. (4.) That if the plaintiff suffered any damage by the delay in the transmission and delivery of the dispatch, it was a damage not within the reasonable contemplation of the parties when the contract for sending the message was made between them. (5.) That the printed blanks, upon which the defendant required messages to be written, contained a clause exempting the defendant from liability from all except nominal damages for delay in the delivery of unrepeated messages, and that in any event the plaintiff can only recover nominal damages. Your first duty, under the pleadings in this case, will be to inquire whether the plaintiff has made out his case by proof, substantially as he has stated in his declaration. So far as this part of the case is concerned, the only point in dispute between the parties is as to the question of negligence. Prompt and speedy communication between different localities is one of the most urgent wants of the present age. To meet this demand telegraph companies are chartered, and they engage to subserve the public interests by transmitting intelligence promptly and speedily. Their engagement is to receive and to transmit by telegraph and to deliver, without unnecessary delay, the message according to the directions. Persons whose messages do not require the most rapid transmission and speedy delivery, take the cheaper and slower method of communication afforded by the mails. When a telegraph company therefore receives a message for transmission, the fair inference is that the sender resorts to the telegraph because he cannot or does not choose to wait for the mail, and the telegraph company agrees by implication that his message shall be carefully transmitted by telegraph and delivered without unnecessary delay. 2 Redfield on Railways, 287-304; Law of Telegraphs, sections 146, 187, 188, 352; Allen's Telegraph Cases, 71, 114, 284, 335, 563, 570; Sweetland v. Telegraph Co. 27 Iowa, 433. You will therefore inquire whether there was negligence on the part of the defendant in either transmitting or delivering the message in question. It is admitted that the message was left at the office in New York, for transmission to Mobile, at about twenty minutes after five P. M., and that it was not delivered until half past ten the next morning; and that under ordinary circumstances it would require only about four minutes to transmit the message from the office of the defendant in New York to its office in Mobile; and that plaintiff paid day rates and not night rates for the message. These facts being conceded, I instruct you as a matter of law, that a prima facie case of negligence is made out against the defendant. Moore v. Westervelt, 1 Bosw. 357; Allen's Telegraph Cases, 284, 345, 570; Law of Telegraphs, section 370; Shearman & Redfield on Negligence, 610. The admitted facts having established the negligence of the defendant, the burden of proof is put upon defendant to rebut the prima facie case VOL. I. 27 |