STEPHEN M. WELD and Others, Respondents,
POSTAL TELEGRAPH-CABLE COMPANY, Appellant.
APPEAL by the defendant, the Postal Telegraph-Cable Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of June, 1911, upon the verdict of a jury for $36,684.42, and also from an order entered in said clerk's office on the same day, as resettled by an order entered on the 29th day of June, 1911, denying the defendant's motion for a new trial made upon the minutes.
Charles F. Brown of counsel [Ralph H. Overbaugh with him on the brief], William W. Cook, attorney, for the appellant.
Henry W. Taft of counsel [Gordon Knox Bell and Edward H. Blanc with him on the brief], Turner, Rolston & Horan, attorneys, for the respondents.
This action was brought to recover damages for gross negligence in the transmissal of a telegraphic order for the sale of cotton on the New Orleans Cotton Exchange.
Upon a former trial the plaintiffs had a verdict for $10,000 which was unanimously affirmed without opinion by this court (132 A.D. 924). The facts were fully stated on appeal (199 N.Y. 88). Upon the facts passed upon on that appeal there is no material change in the evidence upon this trial. The Court of Appeals, by WERNER, J., said: 'As the original message was not 'repeated,' the learned trial court charged the jury that the conditions printed on the blank or form upon which it was sent were binding upon the plaintiffs, and absolved the defendant from liability for damages unless they were occasioned by the defendant's gross negligence. Under the unanimous affirmance by the Appellate Division of the judgment recovered by the plaintiffs, the defendant's gross negligence must be deemed to have been conclusively established, and the only question in that behalf which we have power to consider is whether the rule of liability given to the jury by the trial judge correctly states the law. * * * It is, therefore, but right that telegraph companies should have the power to limit their liability in cases where mistakes occur through no fault on their part, or for such mistakes of their employees as will occur through ordinary negligence in spite of the most stringent regulations or the most vigilant general oversight. But manifestly this power cannot be extended further without placing the public absolutely at the mercy of those engaged in transmitting telegraphic messages. This is the reason of the rule, long since established in this State, that individuals and corporations engaged in this quasi public business
cannot contract to absolve themselves from liability for their own willful misconduct or gross negligence. They may protect themselves by contractual limitations that are reasonable, but beyond that they may not go. That is the law as laid down by this court in a number of cases. ( Breese v. U.S. Telegraph Co., 48 N.Y. 132; Kiley v. Western Union Tel. Co., 109 N.Y. 231; Pearsall v. West. Union Tel. Co., 124 N.Y. 256; Halsted v. Postal Telegraph-Cable Co., 193 N.Y. 293.) The cases cited all hold that a regulation limiting the liability of a telegraph company for a mistake in an 'unrepeated' message to the price paid for sending it is reasonable, but that it does not relieve such a company against the consequences of its gross negligence. The charge of the trial court in this respect was, therefore, clearly correct. Counsel for the defendant argues, however, that the charge was erroneous because the jury were instructed that the magnitude of the transaction affected by the mistake in the telegram must be considered in determining the degree of the defendant's negligence. We cannot agree with counsel in this criticism. It is true that the trial court referred to the importance of the transaction, but that was not improper in view of the conceded other facts which served to charge the defendant's operator with notice that the figures relating to amount and price were of the utmost significance. * * * We are of opinion also that the defendant's exceptions to that part of the main charge which relates to the measure of damages and the allowance of interest are not well taken. * * * The plaintiffs had the right to recover such damages as were the natural and necessary result of defendant's negligence, after the plaintiffs had exercised reasonable care in reducing their loss so far as possible. * * * According to these conditions, the difference between the price at which the plaintiffs sold and the price at which they were able to repurchase was the fair and just measure of their damages, and since the verdict was for a much smaller sum than that to which the plaintiffs were entitled upon that basis, the defendant has no real grievance.' The court reversed, however, upon the sole ground that the court should have submitted to the jury the question whether this was a gambling transaction or not.
In the case at bar the requirement of the Court of Appeals, that the legality of the transaction should be submitted to the jury, was conformed to and it was resolved in favor of the plaintiffs. So that it seems to me that this court is absolutely estopped by our former unanimous affirmance of the judgment, and by the opinion of the Court of Appeals, upon every question which was presented upon the former appeal. This includes the question of gross negligence, the weight of evidence and the measure of damages. It is not open to us, if there be such a rule still existing in the law as stare decisis, to examine any of these propositions so decided and, unless some error has crept into this record which did not appear on the prior record, our sole duty is to affirm this judgment. Appellant claims that errors in the charge require reversal.
The court devoted a considerable portion of its main charge to the question of gross negligence. After pointing out the provisions of the contract appearing upon the back of the telegraph blank, and charging almost in the words of the opinion of the Court of Appeals upon the former appeal, he said: 'So that practically this case comes down to this question: Was this such a mistake as these people contracted with each other should not be construed as a ground of damage, or was it a mistake arising from the gross negligence of the defendant's employees or some one of them? If it was a mere mistake, no matter how arising, there can be no recovery by the plaintiffs; and there can be no such recovery unless you find that that mistake was caused by the gross negligence of the defendant's employee. * * * Now it is hard to define the difference between gross and ordinary or simple negligence. There are three kinds of negligence spoken of by text writers, and, in fact, spoken of by the court. One is simple or slight negligence; another is called ordinary negligence; the third is called gross negligence.' He then gave certain illustrations, concluding: 'So there is a difference between gross negligence and the lesser degrees of negligence. In this case, a recovery can be had only for the gross negligence; and this classification of negligence as gross and ordinary and slight only indicates that under special circumstances, great care and caution are required, or only ordinary care, or only slight care. If the care demanded by the circumstances
of this individual case was not exercised, the case is one of negligence under either heading of this classification, and a legal liability is made out when the failure is shown. Gross negligence, as is said in one of the cases, is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ordinary negligence; but after all, it means the absence of the care that was necessary under the circumstances. So that in this case, you are to determine whether or not this defendant, under all the circumstances of the case as they have been laid before you, exercised the care which those circumstances required. You will take into consideration the amount of the order, the haste in which they had to transact their business, the fact that it was a day when there was a large rush of orders, and give the defendant credit for all that may legitimately be urged, not straining to find it negligence but asking, under all the circumstances of the case, did it, through its employees and representatives, act as prudently and as carefully as was reasonably to be expected under all the circumstances? If it did, the fact that there was a mistake does not make it liable, as I have explained to you. The mere mistake does not make it liable; and, of course, the reason is obvious. It has been shown to you in the proof here, as claimed by the defendant, that it has done all that prudent men could to insure the safe, speedy, correct forwarding of these messages; that its employees were of a high type of skill; that its appliances were of the best kind, and that in that regard it did all that it could; and the mere fact that a man may make a mistake does not of itself make the company liable. They further claim that these mistakes occur, not only by the reason of the inattention or want of care or distraction, perhaps, at the instance of an employee, but that they are ...