Слике страница
PDF
ePub

res judicata. The note which these parties signed as sureties was given three years before the insolvent law was enacted, and hence the law could not have formed a part of the note "as the measure of the obligation to perform it," (McCracken v. Hayward, 2 How. 612;) or of the right of contribution between the co-sureties, provided that right was founded on an implied contract or promise raised by the law from the mutual relation of the parties at the time, and in consequence of their execution of the note, unless it became merged in the judgment of March, 1885. This court, at an early day, decided that, "at the time of executing an instrument by several persons as sureties, each one impliedly promises all the others that he will faithfully perform his part of the contract and pay his proportion of the loss arising from the total or partial insolvency of the principal. * * * Such a promise resembles that by which a man binds himself to pay a certain sum of money at a future day." And following out this principle, the court held that the relation of debtor and creditor among the sureties on a bond, so as to entitle one of them to impeach a voluntary conveyance made by another, commences at the time of executing the bond, and not at the time when he actually pays more than his proportion of the debt. Howce v. Ward, 4 Me. 196. And the language above quoted was reiterated in Thompson v. Thompson, 19 M. 244. The same was adhered to in Thacher v. Jones, 31 Me. 528, 232, where it was held that an indorser of a note was a creditor of the maker. So, in Pulsifer v. Waterman, 73 Me. 233, 238, Howe v. Ward, supra, was reaffirmed, holding that the relation of debtor and creditor existed between a first and second indorser of a promissory note when it was executed by them. So, in Massachusetts, assumpsit for contribution was sustained by a surety, who paid after the decease of his co-surety, against the latter's executors upon the implied promise of the testator. Bachelder v. Fiske, 17 Mass. 463. In a later case the heirs of a deceased surety were held to contribute to a co-surety, who paid after the decease of the defendants' intestate. In speaking for the whole court, SHAW, C. J., said: "The right of action grows out of the original implied agreement arising out of their being co-sureties, that if one shall be compelled to pay the whole or a disproportionate part of the debt for which both thus collaterally and provisionally stipulated to be liable, the other will pay such a sum as will make the common burden equal." Wood v. Leland, 1 Metc. 387, 389. The same eminent jurist had used similar language. Chaffee v. Jones, 19 Pick. 260, 264. The defendant cites several authorities which hold that the liability to contribution arises from the equitable principle that "equality is equity," and not from contract. Doubtless the ancient common law knew nothing of equalizing the burdens of sureties. "Its conception and origin," like numberless other modern rules of law, "are wholly due to the creative functions of the chancellor." Thus BIGELOW, C. J., said: "The right of contribution does not arise out of any contract or agreement between co-sureties to indemnify each other, but on the principle of equity, which courts of law will enforce, that where two persons are subject to a common burden, it shall be borne equally between them. In such cases, the law raises an implied promise from the mutual relation of the parties. * ** It is sufficient that they were under obligation to pay the same debt as sureties for a third person.' Warner v. Morrison, 3 Allen, 566. And similar hints have been dropped in Powers v. Nash, 37 Me. 322, 326. From whatever source the right of contribution springs, the original contract is the bed-rock on which the whole superstructure rests, and to which reference must be made for a starting point, and for fixing the apportionment. A proper regard for the principle of stare decisis compels us to adhere to the decisions of our own court. The liability of the defendant, then, originating in an implied contract of an earlier date than that of the insolvent law, could not be affected by that law unless the claim was proved or was merged in the judgment of March, 1885. There is no suggestion that it was proved, and

Ross v. Tozier, 78 Me. 312, 4 Atl. Rep. 860, and Wilson v. Bunker, 78 Me. 313, 4 Atl. Rep. 861, decide that it was not merged. Moreover, the constitutional prohibition against laws impairing the obligation of contracts as applies to implied contracts as well as to express contracts Fisk v. Police Jury, 116 U. S. 131, 6 Sup. Ct. Rep. 329. Exceptions sustained.

PETERS, C. J., WALTON, DANFORTH, LIBBEY, and FOSTER, JJ., concur.

(80 Me. 381)

FOWLER v. WESTERN UNION TEL. Co.1

(Supreme Judicial Court of Maine. June 6, 1888.)

1. TELEGRAPH COMPANIES-NIGHT MESSAGE-TIME OF DELIVERY-STIPULATIONS. A stipulation or regulation of a telegraph company that it will receive messages to be sent without repetition during the night for delivery not earlier than the morning of the next ensuing business day, at reduced rates, is valid, although another part of the same stipulation to the effect that "the sender will agree that he will not claim damages for errors or delays, or for non-delivery of such message, happening from any cause, beyond a sum equal to ten times the amount paid for transmission," is unreasonable, and void as against public policy."

2. SAME-NON-DELIVERY-ATMOSPHERIC INFLUENCE-DESTRUCTION OF MESSAGE.

A telegraph company cannot be held responsible for the non-delivery of a night message when the evidence shows that before the same could be delivered in the ordinary course of business, the copy was destroyed in the office by a fire caused by atmospheric influences, and not resulting from any negligence on the part of the employes of the company, or through any imperfection in the ir struments which, by any skill or knowledge reasonably attainable in the present sta of telegraphy, could be guarded against.

Report from superior court, Cumberland county.

Action to recover damages for the non-delivery of a night message sent by the plaintiff to one H. F. Googins, Union Stock-Yards, Ill. The message was received at Chicago, but before it could be transmitted to the Union StockYards, where there was no night office, a fire broke out in the Chicago operating room, and the entire contents, including the copy of this message, were destroyed. The fire was caused by atmospheric influences, and without any fault on the part of the company The opinion states the facts in detail.

Woodman & Thompson, for plaintiffs. Baker, Baker & Cornish, for defendant.

FOSTER, J This case comes up on report. It appears that on the evening of August 20, 1883, the plaintiffs, whose business is that of pork-packing, delivered to the defendants' agent at Portland, for transmission and delivery, the following night message: "PORTLAND, August 20, 1883. To H. F. Googins, Union Stock-Yards, Ill.: Ship one car hogs to-morrow. THOMPSON, FOWLER & Co." The message never having been delivered by the defendants, this action is sought to recover damages alleged to have been sustained in consequence. In defense of the action the defendant introduced evidence, and established the following facts: At the Union Stock-Yards, which are about six miles from Chicago, the defendant company had only a day office,-open from half-past 6 in the morning till 10 o'clock in the evening. Night messages directed to the stock-yards, received at the Chicago office during the night, were necessarily kept in that office until after the opening of the office at the stock-yards on the following morning. This dispatch was received at the Chicago office during the night of August 20-21, and the copy was hung upon what was called the "Stock-Yard's Hook" in the operating

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

As to the liability of telegraph companies for delay in delivering messages, and how far they may limit their liability, see Telegraph Co. v. Crall, (Kan.) 17 Pac. Rep. 309, and note; Telegraph Co. v. Howell, (Kan.) Id. 313; Railway Co. v. Miller, (Tex.) 7 S. W. Rep. 653; Kiley v. Telegraph Co., (N. Y.) 16 N. E. Rep. 75.

room, awaiting the opening of the office at that place on the morning of the 21st. About 30 minutes past 6 that morning, and immediately prior to the opening of the stock-yards office, a fire suddenly broke out in the operating room of the Chicago office, and spread with such rapidity that nothing could be saved from the room, and this copy, together with everything in the room, was destroyed. The fire was first discovered in this room upon the back of the "switch-board," where it is covered with numerous wires necessarily running very close to each other, and was caused by the crossing of several wires charged with large batteries. This crossing resulted from atmospheric conditions, the moisture accumulating on the back of the switch-board forming a partial connection between the wires, and acting as a partial conductor, thereby causing the electric current to leave its proper course, with the result as above stated. That such accidents are exceedingly rare is not disputed, and that there are no improvements known to the art or anywhere in use by which the possibility of such an occurrence can be prevented. In consequence of this fire it became impossible for the defendant to deliver the plaintiff's message. This message delivered to the company was written upon a nightmessage blank, and after stipulating that the company would receive mes. sages to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day, at reduced rates, there followed this condition: "That the sender will agree that he will not claim damages for 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 transmission," etc. Above the written message were these words: "Send the following night message, subject to the above conditions, which are hereby agreed to."

[ocr errors]

No evidence was offered at the trial or question raised in reference to the stipulations and condition further than what appears upon the message blank signed at the bottom of the message. Nor is any question raised by counsel in argument before this court in relation to the validity of such a condition as is found attached to this stipulation or agreement. By its very terms, if held valid, this condition would relieve the company from all liability whatsoever for errors, delays, or omissions "happening from any cause. It would protect them from all liability happening as the result of their own negligence. .Whatever force or effect other courts may give to such conditions, whether as a regulation of the company or as a contract between the parties, it is now too well settled by this court to admit of question or contradiction that they are unreasonable, and void. Bartlett v. Telegraph Co., 62 Me. 209; True v. Telegraph Co., 60 Me. 9; Ayer v. Telegraph Co., 79 Me. 493, 10 Atl. Rep. 495. As in the case of common carriers, they cannot contract with their employers for exemption from liability for the consequences of their own negligence. Whether such conditions are reasonable or unreasonable must be determined with reference to public policy, rather than private contract. Express Co. v. Caldwell, 21 Wall. 270. The defense, however, is based entirely upon other grounds. No conditions contained in the stipulation are relied upon as a defense in this action. But it is claimed that under the facts in the case, concerning which there is no controversy, the defendant company cannot be deemed guilty of any negligence, and therefore cannot be held to respond in damages. To ascertain the duties and liabilities of the defendant company we must look to the nature of the employment, and, except so far as it has limited its ordinary obligations by any special stipulation which may be held to be reasonable, be governed by the general and well-established principles of law pertaining to such employment. It is now perfectly well settled by the great weight of judicial authority that although telegraph companies are engaged in what may appropriately be termed a "public employment," and are therefore bound to transmit, for all persons, messages presented to them for that purpose, they are not common carriers in the strict sense of the term.

To be sure, they are engaged in a business almost, if not quite, as important to the public as that of carriers. But while the analogy between the common carrier of goods and common carrier of messages is very strong, nevertheless their responsibility differs in a manner corresponding to the difference in the nature of the services they perform. The common carrier of goods, in the absence of any special contract or regulation limiting its general liability, becomes an insurer of property intrusted to it for carriage; whereas, in the absence of any contract or regulation modifying the liability of telegraph companies, they do not insure absolutely the safe and accurate transmission of messages as against all contingencies, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and for any failure in such care and diligence they become responsible. This appears to be the doctrine now settled by the courts, and is founded upon reason. The following decisions in this country are authority, and may properly be cited in this connection. Bartlett v. Telegraph Co., 62 Me. 220, 221; Ayer v Same, 79 Me. 493, 10 Atl. Rep. 495; Ellis v Telegraph Co., 13 Allen, 232,-which hold them to the use of due and reasonable care, and liable for the consequences of their negligence in the conduct of their business to those sustaining loss or damage thereby. Breese v Telegraph Co:, 48 N. Y. 141; Leonard v. Telegraph Co., 41 N. Y. 571; Baldwin v. Telegraph Co., 45 N. Y. 751; De Rutte v Telegraph Co., 1 Daly, 547; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Telegraph Co. v Graham, 1 Colo. 230; Sweatland v. Telegraph Co., 27 Iowa, 433; Telegraph Co. v. Carew, 15 Mich. 525; Telegraph Co. v. Neill, 57 Tex. 283; Telegraph Co. v. Hobson, 15 Grat. 122; Pinckney v. Telegraph Co., 19 S. C. 71, Smithson v. Telegraph Co., 29 Md. 167; Telegraph Co. v. Davis, 41 Ark. 79.

A more stringent rule, however, was at first suggested in two early cases. The earliest one in which the question of the liability of telegraph companies arose was that of Mac Andrew v. Telegraph Co., 17 C. B. (84 E. C. L.) 3, decided in England in 1855. This case, by implication, can only be said to be authority for holding them to the liability of insurers. It was soon followed in this country by the case of Parks v. Telegraph Co., 13 Cal. 422, decided in 1859, the only case to be found in which telegraph companies have been expressly held to be common carriers, and subject to the same severe rule of responsibility. With this exception, all the American courts which have expressed any decided opinion upon this question have concurred in the doctrine above stated. The degree of care which these companies are bound to use is to be measured with reference to the kind of business in which they are engaged. As compared with many other kinds of business, the care required of them might be called "great care." While meaning really the same, it is variously stated by different courts in the decisions to which we have referred, -"due and reasonable care;" "ordinary care and vigilance;" "reasonable and proper care;" "reasonable degree of care and diligence;" "care and diligence adequate to the business which they undertake;" "with skill, with care, and with attention;" "a high degree of responsibility." These are but the varied forms of expressing the requirement of what is known in law as ordinary care, as applied to an employment of this nature, an employment which is not that of an ordinary bailee. The public, as a general rule, have no choice in the selection of the company. They have none in the selection of its servants or agents. They have no control over the agencies or instrumentalities used in conducting the business of the company. The public must take the agencies which the companies furnish, and they have no supervison over its management or methods of performing the service which it holds itself out as willing and ready to perform. And while we do not hold that these companies are common carriers, and subject to the same severe rule of responsibility, we think that those who engage in the business of thus serving the public by transmitting messages should be held to a high degree of diligence,

[ocr errors]

skill, and care, and should be responsible for any negligence or unfaithfulness in the performance of their duties. A telegraph company, which holds itself out to the public as ready to transmit all messages delivered to it, is bound to have suitable instruments and competent servants, and to see that the service is rendered with that degree of care and skill which the peculiar nature of the undertaking requires. We do not understand, however, that this duty would impose a liability upon the company for want of skill or knowledge not reasonably attainable in the art; nor for errors or imperfections which arise from causes not within its control, or which are not capable of being guarded against. White v. Telegraph Co., 14 Fed. Rep. 710; Sweatland v. Telegraph Co., 27 Iowa, 433; Leonard v. Telegraph Co., 41 N. Y. 572; Ellis v. Telegraph Co., 13 Allen, 233; Bartlett v. Telegraph Co., 62 Me. 221. We think our own court has expressed the doctrine we are discussing in language so fitting that we may be justified in making the following extended quotation from the case last cited: "To require a degree of care and skill commensurate with the importance of the trust reposed, is in accordance with the principles of law applicable to all undertakings of whatever kind, whether professional, mechanical, or that of the common laborer. There is no reason why the business of sending messages by telegraph should be made an exception to the general rule. This requires skill as well as care. If the work is difficult, greater skill is required. It is often necessary to trust to this mode of communication matters of great moment, and therefore the law requires great It is necessary to use instruments of a somewhat delicate nature and accurate adjustment, and therefore they must be so made as to be reasonably sufficient for the purpose. The company holding itself out to the public as ready and willing to transmit messages by this means, pledges to that public the use of instruments proper for the purpose, and that degree of skill and care adequate to accomplish the object proposed. In case of failure in any of these respects, the company would undoubtedly be liable for the damage resulting. This would not impose any liability for want of skill or knowledge not reasonably attainable in the present state of the art, nor for errors resulting from the peculiar and unknown condition of the atmosphere, or any agency from whatever source, which the degree of skill and care spoken of is insufficient to guard against or avoid."

care.

Taking the facts as proved in the case now under consideration, and applying the principles of law to them, are the plaintiffs entitled to recover? They make out a prima facie case when they show that the message which the company undertook to send was not delivered and that damage has resulted. It is not necessary that they show affirmatively that the failure to deliver happened through any omission of duty by the company or its officers, or from some defect in the instrumentalities employed by the company. The failure to deliver being shown, the legal presumption is that it was caused by some one or other of these causes, or of all combined. It then becomes incumbent on the defendant, if it would relieve itself from the consequences of such presumption, to overcome that presumption by showing that in the attempted transmission and delivery of the message it exercised all proper care and diligence commensurate with the undertaking, and that the failure is not attributable to any fault or negligence on its part, or that of any of its employes. Bartlett v. Telegraph Co., 62 Me. 221; Baldwin v. Telegraph Co., 45 N. Y. 744; Telegraph Co. v. Graham, 1 Colo. 230; Shear. & R. Neg. § 559; Telegraph Co. v. Wenger, 55 Pa. St. 262. The case last named was where a message sent by the plaintiff's line to New York was transmitted only to Philadelphia, and no reason was assigned for the failure to transmit the message to its destination. The court say: "No such reason as the law would recognize, and, indeed, no reason at all was given for the failure to transmit the message to its destination. Thus was permitted a clear case of gross negligence against the company, in performing its undertaking, and a consequent

« ПретходнаНастави »