what extent, if to any, are they subject to the rule against discrimination; to what extent, if to any, can they impose terms. as conditions precedent, to taking messages, or as a basis of refusal to take them; and to what extent, if to any, are they subject to common-law duties, as common carriers? We have seen that such companies are instrumentalities of a public nature; that their business is in the nature of a public employment; that they are public or quasi-public servants, and that by virtue solely of such public character they exercise the right of eminent domain. But exactly to what point, in their legal relations to, and responsibility as, common carriers, does this position of acting for the benefit of the public carry them? An examination of the authorities in the following sections shows how almost imperceptible is the line of demarcation between common carriers and telegraph companies. No rule has as yet been stated showing the exact legal status and nature of telegraph companies. It is true that it has been constantly asserted that they are not common carriers, an absolute negation on its face of any similarity, but this assertion has in almost every case been followed by exceptions, until the assertion has become almost merged into the exceptions. We have carefully examined the decisions, however, and believe the following sections state the law as sustained by the weight of authority upon the point of the status of telegraph companies in relation to common carriers. § 16. sense. strictest sense. Telegraph company not common carrier in strictest Although there are some apparently dissenting opinions, even of recent date, nevertheless it can be authoritatively stated that a telegraph company is not a common carrier in the It is not subject to the extraordinary limitations, obligations and responsibilities imposed by law on common carriers, even though they are engaged in a business almost, perhaps quite, as important as common carriers. They cannot be held to the strictest accountability for absolute safety, accuracy and promptness in transmitting messages, communications or intelligence. Their duties are different, and performed in different ways. talities for transmission differ from the means and methods of transportation of common carriers. Their responsibility differs Their means and instrumen in a measure corresponding to the difference in the nature of the services they perform. Carriers are liable under the general rule for all losses not occasioned by the act of God or the public enemy. 20 But even with skillful operators, em some 20" Act of God. Such inevitable accident as cannot be prevented by human care, skill or foresight, but results from natural causes, such as lightning and tempest, floods and inundation." Anderson's Dict. of Law, p. 23, citing McHenry v. Philadelphia, etc., R. Co., 4 Harr. (Del.) 442, Booth, C. J. "Act of God" is occasioned by exclusively natural causes, which human skill and foresight could not prevent. Wald v. Pittsburg, C. C. & St. L. R. Co., 162 Ill. 545, 5 Am. & Eng. R. R. Cas. (N. S.) 70, 44 N. E. 888, 35 L. R. A. 356, 44 S. E. 888. "By the term 'act of God,' is meant something superhuman or thing in opposition to the act of man. A loss occurring by the act of God,' which might have been avoided by the exercise of reasonable skill and care is not such a loss by the act of God as will exempt a carrier from liability. A loss arising from the great fire in Chicago is not a loss arising from the act of God." Chicago, etc., Ry. Co. v. Sawyer, 69 Ill. 285, 18 Am. Rep. 613, and note, 618 "Wind, tide and other acts of God permitting." Adams v. Eames, 19 Wash. 425, 53 Pac. 546. High water, when not act of God. Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552, 37 N. W. 462. Sudden and severe whirlwind which has not previously occurred, excuses carrier. Gulf C. & S. F. R. Co. v. Compton (Tex. Civ. App.), 38 S. W. 220. Earthquake is. Slater v. So. Car. R. Co., 29 S. C. 96, 6 S. E. 936. Unprecedented storms and floods as acts of God. Edson v. Pennsylvania Co., 70 Ill. App. 654; Wald v. Pittsburg, C. C. & St. L. R. Co., 162 Ill. 545, 5 Am. & Eng. R. Cas. (N. S.) 70, 44 N. E. 888. See further as to 66 act of God," Joyce on Damages, §§ 44, 70, 982; note, 13 Am. Rep. 618-621; Shearman & Redfield on Neg. (5th ed.), §§ 16, 39, and note; Thomas on Neg. (ed. 1895), p. 129, § xi et seq.; Elliott on Railroads (ed. 1897), §§ 941, 1455-1457, 1481, 1534, 1651, 1695; 2 Wait's Act. & Def. 25-28, 126, 435, 6 id. 12, 432-435, 2 Parsons on Contracts (8th ed.), bottom pp. 169, 170, n. 1; 2 Sutherland on Dam. (ed. 1893), §§ 476, 655, 709; Actus Dei nemini facit injuriam, Brown's Leg. Mex. (7th ed.), p. 229 et seq. Referring, however, to the general rule above stated, Mr. Sutherland says: So the exception is often stated for brevity; but these others are also well settled; he is not liable for losses or injuries from any inherent defect or quality or vice of the thing carried; nor for those arising from the act of the public authorities, or caused by some act or omission of its owner. His liability is not affected by the kind of motive power he employs, and does not depend on contract, but is imposed by law. He is bound to carry for all persons who apply and on the common-law liability, though he may, as has been stated, contract with the shipper to abate in some degree its rigor." 3 Sutherland on Dam. (ed. 1893), § 916. ployees, servants and agents, and with the most effective and approved apparatus known, telegraph companies cannot guard against inherent and insurmountable imperfections of wires, metals or connecting apparatus, irregularities in the power or efficiency of the electrical current, or certain atmospheric or other natural and incontrollable disturbances. In stating this rule that telegraph companies are not in the strictest sense common carriers, we believe the principal determining point is the public nature of the business of such companies, and the constantly growing necessity of the telegraph in all public and commercial affairs. The exact status of telegraph companies has, to the extent above stated in this section, been settled by the weight of authority,21 and should, to said extent, be gov 21 Telegraph companies are not subject to the same rule of responsibility nor held to the same rule of strictest accountability. A common carrier is liable for all losses not caused by the act of God or the public enemy. Telegraph companies not liable for errors resulting from the peculiar and unknown condition of the atmosphere or any agency from any source which the degree of skill and care required of such companies cannot guard against. The Western Un. Teleg. Co. V. Short, 53 Ark. 434, 3 Am. Elec. Cas. 592, 595, 596, 14 S. W. 649, per a case holding a stipula Battle, J., tion against negligence void. agreements. * It can safe ly be said, however, that the larger part of all messages sent are of a commercial or business nature, which suggest value. common carrier charges different rates of freight for different articles, according to their bulk and value, and their respective risks of transportation, and provides different methods for the transportation of each. It is not shown here that the defendant company had any scale of prices which were higher or lower, as the importance of the despatch was great or small." The Western Un. Teleg. Co. v. Hyer, 22 Fla. 637, 2 Am. Elec. Cas. 484, 488, 489, 1 So. 129, per the chief justice, a case holding the company to a prompt and skillful performance of their undertaking, where a message is delivered to the operator and consideration paid; also a case where the failure to inform the operator of the importance of the telegram did not aid the company. "Not subject to extraordinary limitations and responsibilities" of common carriers. Stamey v. The Western Un. Teleg. Co., 92 Ga. 613, 4 Am. Elec. Cas. 699, 701, 18 S. W. 1008, per Lumpkin, J., a case of right to make reasonable rules and regulations. erned by the rule stare decises. In deducing the rule above stated, we have eliminated the points, often urged, of exclusive possession and control of the goods by the carrier, and the opportunities for embezzlement or theft afforded, and the obligation to deliver the goods themselves, nor have we considered the that direction." Tyler v. Western Un. Teleg. Co., 60 Ill. 491, 1 Am. Elec. Cas. 14, 19, 22, 28, per Breese, J., holding that telegraph companies may limit their common-law liability by contract. Case also of effect as to notice of printed conditions, and a stipulation as to exemption from error, etc., held void. Stated that liability of telegraph companies has never been so great as that of common carriers, in discussing the validity of a stipulation limiting the time in which an action for damages could be brought. Western Un. Teleg. Co. v. Meredith, 95 Ind. 93, 1 Am. Elec. Cas. 643, 644, per Elliott, J. Telegraph and telephone companies and the distinction between them and common carriers considered, and it is said that they do not occupy the exact legal status of common carriers. Central Un. Teleph. Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035, 6 Am. Elec. Cas. 679, 687, 688, 42 N. E. 1035, per Reinhard, J. This case also holds that both telegraph and telephone companies are quasi-common carriers certainly under the statute requiring impartial service, good faith and diligence. The right to make reasonable rules and regulations and limitations thereon is considered. Current of authorities is that they are not common carriers "because the transmission of messages is neces sarily subject to the risk of mistake and interruption. The wire is exposed to the interference of strangers; a surcharge of electricity in the atmosphere or a failure of or irregularity in the electrical current may stop communication; and it is continually subject to danger from accident, malice and climatic influence, where the company has not the immediate custody of the message as a common carrier has of the merchandise it carries." Smith v. Western Un. Teleg. Co., 83 Ky. 104, 1 Am. Elec. Cas. 743, 747, 748, per Holt, J., holding that a telegraph company cannot relieve itself by stipulation from liability for total failure to deliver a message. "Incontrollable influences from atmospheric causes are likely to change the wires and pervert a telegraphic message. It is unreasonable to apply the doctrine which applies to common carriers to a case like the present." Shield v. Washington Teleg. Co. (Dist. Ct. New Orleans), 9 West. L. J. 283, case of error in telegram and nominal damages; message nor sender disclosed importance of telegram. argument that the telegraph company has no property committed to its care, and nothing which can be stolen or taken away, and has nothing of value in its possession, but merely an invisible, intangible, something. These arguments were originally advanced many years ago, at a period when, it may Teleg. Co., 80 Me. 381, 2 Am. Elec. Cas. 607, 611, 614, 10 Atl. 29, per Foster, J., deciding that such companies are held to a high degree of diligence and cannot stipulate against own negligence. That the liabilities of a common carrier do not attach to the business of a telegraph company may now be considered as well settled." Bartlett v. Western Un. Teleg. Co., 62 Me. 209, 1 Am. Elec. Cas. 45, 55, per Danforth, J., holding a stipulation exempting from all liability to be void. That telegraph company is not a common carrier, discussed at length by counsel, and so held by the court. Birney v. New York & Wash. P. Teleg. Co., 18 Md. 341, 81 Am. Dec. 607, Allen's Teleg. Cas. 195, 203–207, 211, 212, a case of the right to establish rules and regulations under the Maryland statute of 1852, c. 369. In the follow ing case 66 the statute limited and Teleg. Cas. 306, 310, 312 et seq., defined the powers of a telegraph that while their duties and obliga- tions were, lar, still the extent or degree of their responsibility was not the same; that even with skill and care errors in transmission were unavoidable: that no property was committed to the company's hands, Ellis v. American Teleg. Co., Allen (Mass.), 226, Allen's etc. 13 66 |