By statute, therefore, a telegraph company in this state is not a common carrier, and the degree of care and diligence exacted of such companies in the transmission and delivery of messages is "great care and diligence." If great care and diligence-which terms, of course, include the employment of proper instruments and competent operators-be exercised by the company in the transmission and delivery of a message, the degree of care prescribed by the statute is complied with. In the next place, the effect of holding that telegraph companies are exempt only for errors arising from causes beyond their own control, would be to hold that such companies cannot by stipulation limit their liability to any extent; for since they are not common carriers or insurers, in no event would they be liable for errors arising from causes beyond their own control. With respect to such stipulations, the decisions of the courts are very conflicting.

In Illinois, Maine and Wisconsin, it is held that there can be no consideration for such a stipulation on the part of the sender of the message, and that, so far as he is concerned, it is void for that reason, although fully assented to by him. Tyler v. W. U. Tel. Co. 60 Ill. 421; S. C. 74 Ill. 168; Candee v. Same, 34 Wis. 477; Bartlett v. Same, 62 Me. 218. It is further held in these cases that such a stipulation is contrary to public policy, and for that reason, also, is void. On the contrary, the cases are very numerous that hold that a stipulation providing that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company. Grinnell v. W. U. Tel. Co. 113 Mass. 299; W. U. Tel. Co. v. Carew, 15 Mich. 525; Camp v. W. U. Tel. Co. 1 Metc, (Ky.) 164; Breese v. U. S. Tel. Co. 48 N. Y. 132; Passmore v. W. U. Tel. Co. 18 Pa. St. 238; Lassiter v. Same, 89 N. C. 334; and numerous cases collected in the note to the case of W. U. Tel. Co. v. Blanchard, reported in 45 Amer. Rep. 486.

There is still another class of cases, of which Sweatland v. Illinois & M. Tel. Co. 27 Iowa, 433, is one, which maintain that such a stipulation should not be held to exonerate or release the company from damages caused by defective instruments, or a want of skill or ordinary care on the part of its operators. But as this latter class. of cases concede that telegraph companies are not common carriers, their liability must rest on the ground of negligence or willful misconduct, which is fraud. Fraudulent conduct on the part of the company would, of course, vitiate such a stipulation; but to say that no stipulation can be made limiting their liability for negligence, is to

say, in effect, that no stipulation can be made limiting their liability at all. It seems to us, therefore, that we must either hold, as did the courts in Illinois, Maine, and Wisconsin, that such stipulations are invalid because unsupported by a consideration, and contrary to public policy, or that it is competent for telegraph companies to stipulate for the limitation of their liability for errors arising from any cause except willful misconduct or gross negligence. As respects the question of consideration, it is enough to say that if the stipulation is one that can be made, it is a part of the contract, and is supported by the same consideration that supports the contract for the transmission and delivery of the message. With respect to the reasonableness of stipulations of the character of that under consideration, we find, upon careful examination, that according to the weight of authority a regulation that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence on the part of the company; and we so hold. It would serve no useful purpose to state at length the reasons given by the various courts in support of this conclusion. It is sufficient to say, generally, that they are founded in the peculiar nature of the employment; the extraordinary risks attending it, against many of which human foresight cannot provide; in the fact that the thing (the message) with which the company is intrusted is of no intrinsic value; that the importance of it cannot be estimated except by the sender; for the transmission of which there must be a simple rate of compensation, and the measure of damages for a failure to transmit or deliver which has no relation to any value which can be put on the message itself.

The action of the court below with respect to the instructions was not in accord with these views. As the case must therefore be sent back for a new trial, it is proper that we should determine upon which party rests the burden of proof. But for the stipulation, the plaintiff having proved the mistake in the message as delivered, the onus would undoubtedly be upon the defendant to excuse its breach of the contract to transmit and deliver the message. But the contract having included a stipulation to the effect that, unless repeated, the defendant should not be held liable for any mistake or delay in the transmission or delivery of the message, or for not delivering the same, beyond the sum received for sending it, unless the mistake, delay, or failure arose from the willful misconduct or gross neglect of the defendant, the plaintiff's right to recover more than the amount paid for sending the message (for which defendant in the present case, by its

answer, offered to allow judgment) could not be established except by proving willful misconduct or gross negligence on the part of the defendant.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MYRICK, J.; SHARPSTEIN, J.; MORRISON, C. J.; McKINSTRY, J.

THORNTON, J. I dissent.

MCKEE, J. I dissent. This was an action to recover damages for failure to transmit and deliver a cipher message to the person to whom it was addressed. On the fifteenth of December, 1882, plaintiff delivered to the manager of the defendant, at its office in Stockton, for transmission to San Francisco, the following cipher message:

"DECEMBER 15, 1882. "To Geo. W. McNear, San Francisco: Buy bail barley falun; report by mail. GEO. HART.

"8 collect.

Upon the receipt of the message at the Stockton office, the operator of the defendant promptly attempted to send it to San Francisco; but it was received in the San Francisco office in the following form:

"M 9:20 a F. 8 collect Sk

"STOCKTON, Cal., Dec. 15.

172

*

"SAN FRANCISCO, December 15. "Geo. W. McNear: Buy bain barley falun. Report by mail. "R.

GEORGE HART."

-and in that form it was delivered to the person to whom it was addressed.

It will be observed that the substantial difference between the two messages is that the word "bail," in the message delivered for transmission, is changed to the word "bain" in the message as received and delivered. Now, both words formed part of the secret cipher code of the sender and receiver of the message; and according to that code the word "bail" meant 100 tons, and the word "bain" meant 225 tons. So that, upon receipt of the message as delivered to him, the plaintiff's agent immediately purchased for the plaintiff 225 tons, instead of 100 tons, of barley; and this resulted in a loss to the plaintiff of $430, for which he seeks to make the defendant liable.

In the case there is no conflict of evidence. It is admitted that the word "bail" was plainly written in the message which the plaintiff delivered to the manager of the defendant's office at Stockton. It was also proved, by evidence in which there is no conflict, that the message as delivered was carefully read by the manager, and by him handed to the operator for transmission; that it was promptly transv.6p,no.9-41

mitted over the wires to San Francisco; that the operator at the San Francisco office and at the Stockton office were both competent and experienced telegraph operators; and that the message was delivered in its altered form,-the mistake consisting in the spelling of the word "bail." In telegraphic orthography the word "bail" is spelled thus: "B" is a dash and three dots, "a" is a dot and a dash, "i" is two dots, and "1" is a dash. "Bain" is spelled by the same lines and dots, except that the letter "n" is a dash and a dot. The actual mistake in the message was, therefore, the addition of a dot to the line in the last letter of the word; and the question is whether that mistake was the result of negligence on the part of the officers or agents of the defendant in the transmission of the message.

Under the Code a telegraph company is not a common carrier. Section 2168, Civil Code. It is, however, a carrier of messages for reward, (section 2161, Id.,) and as such it works under a law which binds it to the exercise of great care and diligence in the transmission and delivery of messages. Section 2162, Id. Like any other corporation or person it is therefore bound, in the exercise of its legal rights, to perform its duty without causing injury or loss to any one; and if it omits to perform in good faith any obligation imposed on it by law, it is liable for the consequences. No contract which it may make by its rules or regulations is allowed to exempt it from liability for misfeasance or nonfeasance in the performance of its duties. Such regulations for exemptions or immunity from liability for error or mistake, which results in loss to another, from the fraud or neglect of itself or its subordinate officers or agents, are considered in law as unreasonable, and, being against public policy, are void. Sweatland v. Illinois Tel. Co. 27 Iowa, 443; W. U. Tel. Co. v. Buchanan, 35 Ind. 429; U. S. Tel. Co. v. Gildersleve, 29 Md. 233; Telegraph Co. v. Fontaine, 58 Ga. 433; Ellis v. American Tel. Co. 13 Allen, 226. If, therefore, a mistake occurs in the transmission of a message from the fraud or neglect of the company, or any of its officers or agents, which results in loss to the sender or receiver of the message, the company is liable for the loss. Section 1714, Civil Code.

In the case in hand, plaintiff proved the mistake; in fact it was admitted, and the loss which it occasioned him. That proof constituted a prima facie case upon which he was entitled to recover in the action. It was not necessary for him to show affirmatively how the mistake occurred, or whether it happened from some defect in the instruments which the company used, or the incompetency or inexperience of the company's operators, or of any omission of duty by the company or its officers. The mistake being admitted, the legal presumption was that it was caused by one or other of those causes, or all of them combined; and it was incumbent on the defendant to overcome that presumption by showing that, in the transmission and delivery of the message, it exercised proper care and diligence, and

that the mistake was not attributable to its fault or negligence, or the fault or negligence of any of its employes. Bartlett v. W. U. Tel. Co. 62 Me. 209; Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263; Baldwin v. U. S. Tel. Co. 45 N. Y. 744; So Relle v. W. U. Tel. Co. 55 Tex. 308.

The defendant, however, did give evidence which tended to prove that during the transmission of the message "fog and wind and a heavy storm prevailed;" that owing to that state of the weather the word "bail" in the message was changed to the word "bain;" and that the change was caused by what is known among telegraph operators as "a false signal caused by the breaking of the current." Upon that question the superintendent of the company gave the following testi

mony:

"Answer. There are various causes that make the working of a telegraphi wire uncertain even in good weather: faults in the instruments---unavoidable ones may cause errors in the transmission of words or letters. Generally, errors of this kind are caused by high winds, which bring two wires together, or switch the limb of a tree against the wire, causing a momentary variation of the strength of the current. Dense fogs will also have the same effect. Question. Take the word bail,' written with a dash and three dots, a dot and a dash, two dots and a dash, assuming that word to have been correctly sent from the Stockton office to San Francisco, could the final '1' be changed ton', so as to reach San Francisco as 'bain,' not 'bail?' A. A great many atmospheric influences could cause an error of that kind. It is called a false signal, caused by the breaking of the current. In this case there was a momentary break in the current, and that break might have made three dots; in this case it made only one additional dot at the end. If it broke in the middle it would make the letterm.'"

Still, however that may be, the mistake, whether it resulted from the negligence of the company or from natural causes beyond its control, could have been discovered and corrected if the message had been repeated; that is, sent back to the Stockton office for comparison with the original message. The company could have tested its accuracy in that way before delivery, if it was properly equipped for the performance of its functions. That it was so equipped is evident from the admitted fact that the operator at San Francisco repeated the message for the purpose of discovering whether the word "falun" in the message had been correctly transmitted.

But the contention is that the plaintiff should have ordered the message repeated in order to secure its accuracy, because he had it transmitted under an agreement between him and the company which reads as follows:

"All messages taken by this company are subject to the following terms: To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any UNREPEATED message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending