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 P. 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.

is against public policy and void.

Such a contract

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 & Ď. P. Bestor, for plaintiff. Messrs. Thomas H. Herndon & John Little Smith, contra. WOODS, Circuit Judge, charged the jury as follows:

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, at penny 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

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DORGAN V. THE TELEGRAPH COMPANY.

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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 21 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.

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DORGAN V. THE TELEGRAPH COMPANY.

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(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 shalĺ 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

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DORGAN V. THE TELEGRAPH COMPANY.

[No. 9.

thus made. For although the facts unexplained show negligence, the defendant may, by evidence, so excuse and explain its conduct as to make it perfectly clear that there was, in fact, no negligence whatever.

This the defendant has undertaken to do. It claims to have shown that the message was not promptly transmitted on account of obstructions beyond its control, and which are peculiarly incident to the transmission of intelligence by telegraph. The rule of law governing this branch of the case may be thus stated: 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 destination arising from the accidents and obstructions to which telegraphic lines are liable.

Apply this rule of law to the facts in this case. Has the defendant satisfied you by the evidence that the reason why the message of plaintiff did not reach Mobile until ten o'clock P. M. was owing, not to the negligence or carelessness of any of the defendant's agents, but to obstructions. in the line which the defendant could not foresee or prevent. If you so find, then the defendant has succeeded in disproving the charge of negli gence so far as the delay in the transmission of the message to Mobile is concerned.

It is the duty of a telegraph company to transmit messages impartially, in good faith, and in the order in which they are received. Crouch v. Railroad Co. 14 C. B. 255; Johnson v. Railroad Co. 4 Exch. 367; Wibert v. Railroad Co. 2 Kernan, 245.

If the defendant has satisfied you that its adherence to this rule contributed to the delay in the transmission of the plaintiff's message, and that such adherence, combined with obstructions in the working of the line, caused the delay in the transmission until ten o'clock P. M., then the prima facie case of negligence, so far as concerns the transmission of the dispatch, is overcome, and you should find that the defendant was not in fault in failing to transmit the message at an earlier hour.

Under these instructions you will determine whether the defendant was guilty of negligence in not transmitting the dispatch to its destination before ten o'clock P. M.

If you shall be of opinion that the telegraph company was not in fault, but used due diligence to transmit the message, and was prevented from so doing as claimed, you will then proceed to inquire whether the defendant has shown that there was no negligence in the delivery of the message after its arrival in Mobile.

Was the defendant bound to deliver the message after ten o'clock at night?

If the message showed upon its face that its delivery that night was a matter of importance to the plaintiff, and that a failure to deliver immediately would involve him in loss, and it appeared that the message was a day message and had been delayed, then it is for you to say whether due diligence did not require of defendant to deliver the message at once, or at least make an effort in good faith to do so.

If, on the other hand, the message did not on its face indicate the importance of immediate delivery; if the plaintiff had left no notice at the office of defendant that he expected an important message, and had not requested

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DORGAN V. THE TELEGRAPH COMPANY.

[No. 9.

its immediate delivery, and the message actually arrived after the messenger boys had been dismissed for the night, and after the hour for closing the telegraph office had passed, and after the plaintiff had closed his own office and gone to his residence, a mile, or a mile and a half from the telegraph office, if you find these facts, then you will consider and determine whether due diligence required under these circumstances the delivery of the message on the night of the 30th of January. If you find that it was not reasonable, under the circumstances, that the defendant should be required to deliver the message on the night of its reception, you will be justified in the conclusion that the defendant was not guilty of negligence in not delivering the message on the night of the 30th; and you should then inquire whether there was negligence in not delivering the message at an earlier hour than half past ten o'clock A. M. of the next day.

Ought the defendant to have delivered the message at an earlier hour on the 31st? Before passing upon this question there is another raised by the evidence that you should decide upon. The defendant claims to have introduced proof sufficient to show that the message was taken to the office of defendant between eight and nine o'clock A. M., and was not delivered because there was no one there to receive it. Whether this is the fact, or whether the message was taken to the office of plaintiff for the first time at half-past ten o'clock A. M., you will decide whether there was, under all the circumstances, negligence in the delivery of the dispatch on the morning of the 31st.

If under these instructions applied to the facts you shall be of opinion the defendant has rebutted the prima facie case of negligence made by the plaintiff, and has explained satisfactorily the delay in the transmission and delivery of the message, then that is the end of the case, and it will be your duty to return a verdict for the defendant.

If, on the other hand, you should be of opinion that the defendant has been guilty of negligence in the premises, you will then proceed to consider other matters of defence.

One of them is that if the plaintiff suffered any damage he contributed to bring it about by his own carelessness and neglect.

The rule of law upon this branch of the defence has been thus stated: One who is injured by the mere negligence of another cannot recover any compensation for his injuries if he, by his own ordinary negligence, contributed to produce the injury of which he complains.

See Shearman & Redfield on Negligence, sec. 25, and cases there cited. I give you this as the law upon the point in question.

The defendant insists that the plaintiff, by sending a message of inquiry to New York might have avoided the loss of which he complains, and that, had he acted as a prudent man, he would have done so. That being in negotiation for the sale, both in New York and Liverpool, of the same five hundred bales of cotton, which he alleges he had on hand on the 30th inst., having made an offer to sell in New York, he should not have sold in Liverpool without ascertaining definitely whether his New York offer had been accepted.

Now, this is a point upon which you must judge. What were the dictates of ordinary prudence and care? If a prudent and careful man