Breese v. United States Telegraph Company. mon law also applied to carriers by water, innkeepers and stable keepers. (Story on Bailm. § 490.) An auxiliary reason, which doubtless entered into the policy of the law in this respect, was the same which furnishes the measure of the carrier's liability, viz. that being in corporeal possession of the thing to the exclusion for the time being of the owner, the carrier was the only person who could protect it, and ho was deemed able to protect it against all injuries not arising from the excepted perils. 3. Regarded as a technical common carrier, still it must be plain that the defendant is not within the policy of the rule; and an application of the criterion will dissipate the idea that it has any possession of any thing, or any such control over the subject matter of its employment as to justify its being held to the hard measure of responsibility which a carrier of goods justly bears. (a.) That which the telegraphic operator receives is merely an idea which can not be the subject of robbery or misappropriation. (b.) The possession which he acquires of it is a mental possession merely, and having received it, the author or owner has parted with nothing. In its nature the thing or idea committed to the operator has no relation to space; can not be transported; needs and can receive no protection, being inherently indestructible. As the operator sends it nowhere, he does not go with it to protect it, and never has any such possession or control of it as may be had of material things. What precisely the operator does, and what the legal character is which he assumes, may be more properly considered under another view of the case. 4. Still regarding the defendant as technically a carrier, it must be seen that it is sui generis, and if it is to be treated as having liabilities imposed by law, in addition to those expressly arising from its contracts, the law must first hear what functions or services it promises to perform. If it may not limit its liabilities for misperformance of its functions, it may at least define what, precisely, it undertakes to do for one price, and what for another. As the business is new, the telegrapher must be Breese v. United States Telegraph Company. permitted to say what things are necessary to make it certain that a person in New York shall receive the mental impression intended by a person in Palmyra. By the notice in this case, the telegrapher virtually says, "The nature of this business is such, that I can not, myself, know whether a message is correctly transmitted, or indeed, whether it is transmitted at all, unless it is telegraphed back to me, to be compared with the message which I intended to communicate. That is, since I speak over hundreds of miles, I must know from the receiver what he has heard, if any thing, before I can know whether he has rightly understood me. Ordinarily the message will go correctly, but the action of the elements, the malice of persons along the line, over whom I have no control, and the imperfections of the vocabulary which I am compelled to use, may at any time confuse or utterly destroy my communication, and that without my being aware of it. For such persons as are willing themselves to take the risk of a correct transmission, I will do the best I can for a certain price; from such as desire me to assume the risk and responsibility, I must receive another price, to compensate me for the extra labor which their wish, in that respect, entails upon me." The proposition of the telegrapher is not, therefore, to carry safely at all events; but to carry safely if certain necessary conditions of safety are provided by the sender, i. e. paid for by him. 5. The terms of the printed message blank voluntarily used by the sender constitute a valid defense in this case. (a.) The message being written upon the blank, and signed under the printed request, "Send the following message subject to the above conditions and agreement," constitutes a binding agreement between the parties and special acceptance by the defendant. It was the duty of the plaintiffs' agent to read the conditions; and the defendant's agent was justified, on receiving the message in the form in which it was presented, in supposing the conditions had been read and assented to. (Am. Law Reg. Nov. 1865, p. 10.) And it is competent for a common carrier to make such a contract. Breese v. United States Telegraph Company. (Bissell v. N. Y. Cent. R. R., 25 N. Y. Rep. 442. 5 Hurlston & Norman, 867.) (b.) Considering the terms of the message blank as merely a regulation of the defendant, and not an agreement, it is valid. The statute authorizes the making of such a regulation; it is reasonable; the possession of the blank was notice to the plaintiffs; and even without actual notice, they are charged with constructive notice. of all regulations made under a statute. (Laws of 1848, ch. 265, § 11. McAndrews v. The Electric Tel. Co., 33 Eng. L. and Eq. R. 180. Birney v. N. Y. and Wash. Tel. Co., 18 Maryland R. 357. Camp v. West. Un. Tel. Co., 1 Metc. 164. S. C. 6 Am. Law Reg. 443.) III. The defendant is not a common carrier, or a carrier of any sort; but is an ordinary bailee for hire to perform a B. special service, and as such, liable only for negligence or want of skill, which must appear affirmatively. (a.) According to all the definitions, a common carrier is one who undertakes The into transport goods; and the person having chosen a public employment, and offered himself as a common servant, the law, on account of special considerations relating to carriage of goods and to no other employment, has imposed upon him· a liability characteristic of his class. That the telegraphic operator is not a carrier of any thing, or within the policy of, or subject to the rules of law applicable to common carriers, has been discussed above. (b.) The telegraphic operator being possessed of mechanism by which certain magnetic action can be produced in New York, over a free conductor of electricity, undertakes to make certain manipulations at Palmyra, which will probably produce certain effects in New York, and which effects, being produced in a certain order and rightly understood, will bring the mind of the operators at the respective termini to an agreement or common understanding on a certain subject. The principal object in view by the employer of the telegraph in this case was to induce Camman & Co. to purchase certain gold for him. In and about this principal object the telegrapher acts as a simple Breese v. United States Telegraph Company. bailee to notify Camman & Co. of the wishes of the plaintiffs; which they may afterwards be willing or able to comply with or not. (c.) The employment of the telegrapher would, therefore, seem to be a pure bailment, locatio operis. faciendi, requiring on his part, as legal obligation, requisite skill, good faith, care, and diligence, and subjecting him to liability only in case of the lack of one of these. (Birney v. N. Y. and Wash. Tel. Co., 18 Maryland R. 753. 2 Par- 341 sons on Cont. 133, 5th ed. Platt v. Hibbard, 7 Conn. R. 501.) (d.) No negligence or want of skill appears in this case. The error may have arisen from negligence of an operator, but is more likely to have arisen from some atmospheric or other cause unknown, dissipating, weakening or confusing the magnetic current. It is confidently assumed, that upon such a state of facts, touching an employment so hazardous and uncertain, the court will not infer negligence from an error insusceptible of explanation. It is believed, on the contrary, that the fact that it can not be explained is almost conclusive that the cause of the error was uncontrollable, and incurable, except by the repetition which the plaintiffs declined to pay for. In such a case as this, the carrier or bailee is liable only for negligence, and the burden of proof is on the plaintiff. (N. J. Steam Navigation Co. v. Mer. Bank, 6 How. 314.) By the Court, JOHNSON, J. It must be held, I think, that the printed heading to the paper on which the message, delivered to the defendant for transmission, was written, was, under the circumstances, something more than a mere notice to the plaintiffs' assignor, by whom such message was written, signed and delivered. Before the message was written under it, and signed, and delivered to the defendant, it was a general proposition to all persons desiring to send messages by the defendant's peculiar means of transmission, or conveyance, of the terms and conditions upon which such messages would be sent, and the defendant became liable in case of VOL. XLV. 19 Breese v. United States Telegraph Company. error or accident in the transmission or conveyance. By writing the message under it, and signing and delivering the same for transmission, the party accepted the proposition, and it became an agreement, binding upon the defendant, only according to the terms and conditions specified in its proposition. That such is the legal effect of the arrangement, under which the message in this case was received for transmission by the defendant, seems to me extremely clear. Under the date of the message and the name of the place from which it was sent, was printed in large clear type, "Send the following message subject to the above conditions and agreement." Directly under this the message was written and signed by the plaintiffs' assignor. There is no pretense that the "conditions and agreement" there referred to, were not plainly printed, or that there was the least difficulty in reading and understanding the terms proposed by the defendant. There they stood, in clear plain print. First, a general statement, that, "in order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought to be repeated by being sent. back from the station to which it is directed, to the station from which it is sent, and compared with the original message." Following this is the tariff or rate charged for such repetition and comparison, as follows: "Half the tariff price will be charged for thus repeating and comparing." Then follow the terms and conditions, in this language: “And it is hereby agreed between the signer or signers of this message that this company shall not be held responsible for errors or delays in the transmission or delivery of this message if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of the risk specified in this agreement, and that in case this message is not repeated, this company shall not be held responsible for any error or delay in the transmission or delivery of the same beyond the amount paid for transmission, unless specially insured and |