To this dispatch they made the following reply:

"CLEVELAND, OHIO, December 23d, 1871. "S. M. Coupland, Woodstock, Ontario: "Yes, if seed is prime, and we can hold at London until spring. "GRISWOLD & DUNHAM.”

Upon the receipt of this message Cowpland purchased for the defendants 2407 bushels of flax seed at $1.45 per bushel, and on the 22d of January, 1872, shipped the same to Cleveland via Detroit.

The answer of the plaintiff in error denied the allegation of negligence charged and set up the fact that the dispatch was sent from Woodstock under a special agreement with the Montreal Telegraph Company, which was as follows:

(( MONTREAL TELEGRAPH COMPANY, FORM No. 2. "(Terms and conditions on which this and all other messages are received by this Company.)

"In order to guard against, and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which the message is received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delays, in the transmission or delivery, nor the non-delivery of repeated messages beyond two hundred times the sum paid for sending the messages, unless special agreement for insurance be made in writing, and the amount of risk specified on this agreement and paid at the time of sending the message, nor will the company be responsible for any error or delay in the transmission or delivery, or for the non-delivery of any unrepeated message, beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated therein, and paid for at the time. No liability is assumed for errors in cipher or obscure messages, nor is any liability assumed by this company for any error or neglect by any other company over whose lines this message may be sent to reach its destination, and this company is hereby made the agent of the sender of this message to forward it over the lines extending beyond those of this company. No agent or employe is allowed to vary these terms, or make any other verbal agreement, nor any promise at the time of performance, and no one but a superintendent is authorized to make a special agreement for insurance. These terms apply through the whole course of this message on all lines by which it may be transmitted.

"(Signed,) JAMES DAKERS, Secretary. "(Signed,) HUGH ALLEN, President. "Send the following message without repeating it, subject to the above conditions. Time received, December 23d, 1871:"

"To Messrs. Griswold & Dunham, Cleveland, O.: "Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night. (Signed) "S. W. CoWPLAND."

It appeared from an answer to an interrogatory annexed to the plaintiff's reply, made by the superintendent of the Telegraph Company, that he had caused inquiry and search to be made for the original message received by the company at Buffalo, and that the same could not be found.

The court, among other things, charged the jury, in substance, as follows:

That if the message delivered to the defendant below by the Montreal Company was the same as the one delivered to it at Woodstock, and the mistake occurred in transmitting the same over the line of the defendant below from Buffalo to Cleveland, and such mistake occurred through the carelessness and negligence of the defendant, the special agreement set up in the answer did not relieve the company from liability otherwise resulting from such negligence. livery of the message to the plaintiffs differing The court also charged the jury that the defrom that received by the company, was evidence of negligence, and left it to them to determine whether such evidence was sufficient to establish the fact of negligence.

The court further charged, that while the clause in the special agreement set up in the answer exonerating the Company from liability "for errors in cipher or obscure messages was valid the message was not obscure, nor in cipher within the meaning of that stipulation.

To these several points of the charge, and for refusing to give their converse to the jury, the defendant below excepted.

Verdict and judgment for the plaintiffs below for $1,290.61.

On error to the district court the cause was reserved for decision by this court.

BOYNTON, C. J.

As we have reached the conclusion that the for a new trial founded on the alleged insufficourt below did not err in denying the motion ciency of the evidence to sustain the verdict,

and as a review of the evidence would serve no useful purpose, it only remains to consider whether the court erred in the instructions given to the jury. The first question arises on the exception to that portion of the charge by which the jury were told that the special agreement under which the message was sent did not relieve the company from liability for the damages resulting from the inaccurate transmission through the negligence of the Company or its of the message, if the mistake or error occurred agents. There seems to be a want of harmony in the decided cases on the point of the correctness of this instruction; and this no doubt arises, in some measure, at least, from the different views taken of the nature of the employment in which telegraph companies are engaged, and to some extent from different views taken of their rights and liabilities by courts who

In

fully agree upon the nature of such employment, but differ as to the extent of the duties and obligations that spring therefrom. Parks, v. The Alta California Tel. Co., 13 Cal. 422, the obligations of telegraph companies

were held to be the same as those of common carriers, and consequently that they were, in effect, insurers of the safe transmission of a message, unless the transmission was interfered with by the act of God or the public enemies. An early case in England held the same doctrine. McAndrew v. The Electric Tel. Co., 33 Eng., L. & Eq. 180. But the weight of authority, both English and American, is clearly the other way. Ellis v. American Tel. Co., 63 Allen 226; Leonard v. New York, etc., Tel. Co., 41 N. Y. 544; Breese v. United States Tel. Co., 48 N. Y. 132; New York, etc., Tel. Co. v. Dryburg, 35 Penn. St. 298; Bartlett v. Western Union Tel. Co., 62 Me. 209; Birney v. New York, etc., Tel. Co.. 18 Md. 341; Grinnell v. Western Union Tel. Co., 113 Mass. 299.

But that telegraph companies exercise a quasi public employment with duties and obligations analogous to those of the common carrier, is a proposition clearly settled. The statute confers upon them power of eminent domain, which no one will contend could be conferred upon them, consistently with the Constitution, if they were engaged in a mere private employment or occupation by which the public interests were not affected.

They are required to receive dispatches from individuals or corporations, including other telegraph companies, and to transmit and deliver the same faithfully and impartially in the order received, except in a few specified cases, where from public considerations certain preferences may be made. S. & S. 155. These provisions, as well as the nature of the employment itself, are entirely inconsistent with the theory that the business of conducting a line of telegraph is a mere private employment as distinguished from one carried on for the benefit of the public at large. Granting this, it is, however, contended that because the company is not an insurer of the safe transmission of a message, and is authorized to make or adopt such regulations and by-laws for the management of the business as it may deem proper, (1 S. & S. 298, § 46), it cannot be made liable to the plaintiff below, beyond the amount paid for sending the message, in the face of the stipulation against liability for any error in an unrepeated message, notwithstanding such error resulted from the negligence of the company's agents by whom the message was sent over the wires. To this proposition we do not agree. It has long been the settled law of this State that a common carrier cannot, either by special agreement with, or notice brought home to the shipper, relieve himself from liability for the consequences of his negligence. Davidson v. Graham, 2 Ohio St. 131: Railroad Company v. Curran, 19 Ohio S. 1. In Graham v. Davis, 4 Ohio St. 377, a case involving the liability of a common carrier who

claimed exemption therefrom by reason of a special contract with the shipper, it was said that "one of the strongest motives for the faithful performance of a public duty, is found in the pecuniary responsibility which the carrier incurs for its failure. It induces him to furnish safe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with one to relieve him from any part of this responsibility reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral because it diminishes the motive for the performance of a high moral duty; and it is against public policy, because it takes from. the public a part of the security they would otherwise have."

These considerations-there referred to common carriers-apply with equal force to those who furnish the means of telegraphic communication to the public. Their employment is not only public in its nature, but it has become a necessity alike to the social and commercial world.

Hence, it is as true of them as of common carriers, that any stipulation or regulation that authorizes or enables them to secure exemption from liability for negligence, in the transmission or delivery of the message, reaches far beyond the person with whom they are dealing and for whom the immediate service is being performed, and affects the entire public. The cases which hold that a common carrier may stipulate for immunity from liability for mere negligence all agree that they are liable for " gross negligence." But just what this term means is not readily ascertained. There is authority for holding it to be equivalent to fraud or intentional wrong; Jones on Bail's 8-46 et seq.; but a majority of the cases would seem to hold it to be a failure to exercise ordinary care. In Wilson v. Brett, 11 Mees' & Wels' 113, it was said by Baron Rolfe, that he could "see no difference between gross negligence and negligence; that it was the same thing with a vituperative epithet." In Hinton v. Dibbin, 2 Ad. & El. (N. S.) 644, Lord Denman remarked, that “when we find gross negligence made the criterion to determine the liability of a common carrier who has given the usual notice, it might perhaps have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed, however, that in none of the numerous cases upon this subject is any such attempt made; and it may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists." See also Beal v. South Devon R'y Co., 3 H. & C. 337; Austin v. The Manchester R'y Co., 11 Eng. L. & Eq. 513; and Comments of Parke B. in Wyld v. Pickford, 8 M. & W. 443. In Duff v. Budd, 3 Brod. & Bing.. 177, it was held by Dallas, Ch. J., that "gross negligence is where the defendant or his servants have not taken the same care of the property as a prudent man would take of his own.' And by

Best, J., in Batson v. Denovan, 4 Barn & Ald., that they must take as much care of it as a prudent man does of his own property."

In Grill v. The General Iron Screw Collier Company, L. R. 1, C. P. 600, gross negligence was held to be a relative term and meant "the absence of the care that was requisite under the circumstances." It was the absence of such care as it was the duty of the defendant to use in the circumstances of the case.

In Beal v. South Devon R'y Co., supra, it was held in the case of a carrier that "gross negligence includes the want of that reasonable care, skill, and expedition which may properly be expected of him." Cromption, J., remarking that, "for all practical purposes, the rule may be stated to be that failure to exercise reasonable care, skill and diligence, is gross negligence." To the same effect is Briggs v. Taylor, 28 Vt. 181, and Shear & Red on Neg., § 16. All substantially agreeing with Willis, J., in Lord v. Midland Railway Co., L. R. 2, C. P. 344, that "any negligence is gross in one who undertakes a duty and fails to perform it." See, also, Griffith v. Zipperwich, 28 Ohio S. 388; and Pennsylvania Co. v. Miller, 35 Ohio S. 549.

These authorities show a strong tendency in the adjudications to break down the impracticable distinction between what is termed gross negligence and ordinary negligence, which some of the cases hold to exist. The rule, however, in this State is well settled, that one exercising a public employment is liable for failing to bring to the service he undertakes, that degree of skill and care which a careful and prudent man would, under the circumstances, employ; and that any stipulation or regulation by which he undertakes to relieve himself from the duty to exercise such skill and care in the performance of the service, is contrary to public policy, and consequently, illegal and void. In our opinion telegraph companies fall within the operation of this rule; and that in failing to exercise such care and skill in the transmission and delivery of messages, they become liable for the resulting consequences, notwithstanding their stipulation to the contrary. The right to make rules and regulations to govern the man agement of their business is expressly conferred by statute. But such rules must be reasonable, and if they fail to accord with the demands of a sound public policy they are void. Railroad Co. v. Lockwood, 17 Wall. 357, 21 Wall. 267.

We are also of the opinion that the failure to transmit and deliver the message in the form or language in which it was received, is, prima facie, negligence, for which the company is liable; and that to exonerate itself from the liability thus presumptively arising, it must show that the mistake was not attributable to its fault or negligence. This rule not only rests upon sound reason, but is fully sustained by well considered cases. Bartlett v. Western Union Tel. Co., 62 Me. 209; Rittenhouse v. The Independent Line of Telegraph, 44 N. Y. 263; Tyler, etc., v. The W. U. Tel. Co., 60 Ill. 421; Baldwin

v. U. S. Tel. Co., 45 N. Y. 744; W. U. Tel. Co. v. Carew, 15 Mich. 525; De La Grange v. S. W. Tel. Co., 25 La. An. 383; W. U. Tel. Co. v. Meek, 49 Ind. 53; Turner v. Hawkeye Tel. Co., 41 Iowa

458.

If the error or mistake is attributable to atmospheric causes or disturbances, or to any cause for which the company is not at fault, it is entirely within its power to show it. To require the sender of the message to establish the particular act of negligence or hunt out the particular locality where the negligent act occurred, after showing the mistake itself; would be to require, in many cases, an impossibility, not infrequently resulting in enabling the company to evade a just liability. We are further of the opinion that the court did not err in holding, and so instructing the jury, that the message received by the company for transmission was not obscure within the meaning of the stipulation in the agreement under which the message was sent. It appeared upon its face that it related to a business transaction, a transaction involving the purchase and sale of property. The company was, therefore, apprised of the fact that a pecuniary loss might result from an incorrect transmission of the message. Where this appears there is no such obscurity as relieves the company from liability for negligently failing to transmit and deliver the message in the language in which it was received. Western Union Tel. Co. v. Wenger, 55 Penn. St. 262; Rittenhouse v. Independent Line of Tel., 44 N. Y. 265; Manville v. W. U. Tel. Co., 37 Iowa 220.

Judgment affirmed. OKEY, J.

The view taken of this case in the opinion of the Chief Justice is, in my judgment, wrong. In the argument for the plaintiff in error in this court, a reversal of the judgment in the court below is sought upon three grounds only. First: It was not shown that the defendant below failed to correctly transmit the message received, and therefore a new trial should have been granted. Second: The verdict is not supported by sufficient evidence, in that the damages are excessive. Third: The court erred in the charge with respect to the special contract.

I will briefly consider these alleged grounds of error, but not in the order they are discussed by counsel.

1. As to the special contract with respect to the message, set forth in the statement of the case. The contract, though made in Canada, with the Montreal Telegraph Company, applies in terms "through the whole course of this message on all the lines by which it may be transmitted." The statutes of this State (S. & S. 155, § 137, 1 S. & C. 298, Rev. Stats. § 3462), conferring power on telegraph companies to make rules and regulations, are the same as in Massachusetts and other states, and, according to the construction placed thereon in several states, the stipulations in the special contract in this case are, with a single exception, such as

telegraph companies may lawfully make. Grinnell v. Telegraph Co., 113 Mass. 299; 30 Ohio St. 557.

I am entirely satisfied with Grinnell's case ; and in asserting a principle inconsistent with it, this court is opposed by the clear weight of authority. 2 Thompson on Neg. 841. But by the contract relied on in, this case a special agreement could only be made with the superintendent of the company. To require that one desiring to make such special agreement shall hunt up the superintendent, is unreasonable, and renders the regulation wholly void. Tyler v. Telegraph Co., 60 Ill. 421-438, affirmed, 74 Ill. 168.

2. Did the plaintiff in error fail to correctly transmit and deliver the message? The answer amounts to a general denial; at least, it was so regarded by both parties during the trial; and although, during the charge, the plaintiffs below suggested that certain allegations in the petition were not denied, the court said to the jury that this was a mistake, and that the jury must regard all allegations in the petition as denied. Whether this was strictly accurate or not, we should under the circumstances, on hearing of this petition in error, regard the answer in the same way.

The court charged the jury that the burden was on Griswold & Dunham to show negligence. If that charge was correct, the verdict was wrong, for negligence was not proved. The destruction of the original message by the telegraph companies and two or three other facts relied on to show such negligence, are wholly insufficient to show any negligence whatever. But the charge was not correct. Where suit is brought for a loss of goods against the last of several connecting common carriers, the burden is on such last carrier, on proof that the goods were lost or injured in transit, to show that the loss did not occur on his part of the line. Laughlin v. Railroad, 28 Wis. 204; Dixon v. Railroad, 74 N. C. 538; Smith v. Railroad, 43 Barb. 225, affirmed, 41 N. Y. 620; 2 Daly, 463; Brintnall v. Railroad, 32 Vt. 665. The same principle has been applied, and I think properly applied, in the case of connecting telegraph companies. De La Grange v. Telegraph Co., 25 La. Ann 383. The burden to show by evdience that the mistake in this case was not the result of negligence on the part of the agents of the plaintiff in errorthe proof showing that the message received by the defendants in error was not the same as when delivered to the Montreal Telegraph Company-rested, therefore, upon the plaintiff in error; but it offered no such proof.

3. Were the damages excessive? Cowpland was the agent of Griswold & Dunham to purchase and pay for the seed in Canada, and he was to be paid for his services by them. This is so stated in the petition and shown by the evidence. Cowpland testifies that he did not know any mistake in the message had been made until January 30, 1872, which was after Griswold

& Dunham had sustained all the injury of which they complain. But if there is a fact clearer than all others in the case, it is that Cow pland ascertained the mistake January 5, 1872. About this there can be no sort of doubt. Now, on January 5th, Cowpland had not received or paid for a bushel of the seed, and besides the seed was then worth at London, Canada, one dollar and forty-five cents per bushel. He had it in his power, therefore, to prevent the larger part, if not all the loss sustained by his principals, which loss they are now shifting upon the telegraph company. This can be justified neither in morals nor law. Notice to Cowpland on January 5, 1872, was notice to Griswold & Dunham. Wade on notice, § 672 et seq. And see 2 Thompson on Neg. 858. I am of opinion, therefore, that a new trial should have been granted upon the ground that the damages were excessive.

SUPREME COURT OF OHIO.

DAVID WERT

v.

T. H. B. CLUTTER.

November 22, 1881.

1. Under the Act of May 5, 1868 (65 Ohio L. 146), to protect the citizens of Ohio from empiricism, it is not unlawful for a person of good moral character to practice medicine and surgery for reward or compensation, who has been engaged in the continuous practice for ten years or

more.

2. Such ten years of continuous practice may embrace time since, as well as before, the taking effect of said act.

3. It is immaterial whether the services rendered during such period of practice were gratuitous or for compensation.

Error to the District Court of Crawford County. The original action was brought by defendant in error against plaintiff in error,to recover for services rendered by plaintiff as a physician and surgeon, at the request of the defendant. The plaintiff alleged that at the time of rendering the services, to wit: on and after the 17th day of March, 1874, he was a person of good moral character and had been continuously engaged in the practice of medicine for a period of ten years and more, &c. These allegations were denied by the defendant.

On the trial in the court of common pleas, the plaintiff offered testimony tending to prove the rendition of services as alleged in his petition, and that previous to such services he had been continuously engaged in the practice of medicine for more than ten years, but it was not claimed that he had been so engaged for a period of ten years before the 1st day of October, 1868; and it was also admitted on the trial, that at the time the alleged services were performed by the plaintiff, for the defendant, on the said 17th day March, 1874, he the said plaintiff had not attended two full courses of instructions and graduated at some school of medicine, either of the United States or some foreign country, that he did not have and could not now produce a certifi

cate of qualification from any State or county medical society; and that he then was and now is a person of good moral character.

Whereupon the defendant, by his counsel, asked the court to charge the jury: "That in order to recover in this case the plaintiff must satisfy the jury by a preponderance of evidence, that prior to the time the alleged services were performed by plaintiff, as alleged in his petition, that the said plaintiff had attended two full courses of instruction and graduated at some school of medicine either of the United States or some foreign country; or can produce a certificate of qualification from some State or county medical society; or, that prior to October 1st, 1868, he had been continuously engaged in the practice of medicine, for a period of ten years." Which instructions the court refused to give to the jury, but did charge the jury that, If the plaintiff had been continuously engaged in the practice of medicine, for a period of ten years prior to rendering the services alleged in his petition, and if the services were performed at the request of the defendant, under a promise of the defendant to pay him therfor, he will be

entitled to recover what the testimony shows the services were reasonably worth, with interest." To which refusal to charge as requested, and charge as given, the said defendant excepted.

A verdict and judgment were rendered for the plaintiff, which judgment was afterwards affirmed by the district court.

This proceeding is prosecuted to reverse the judgment below.

Finley & Swigart and S. R. Harris, for plaintiff in error.

Nathan Jones, for defendant in error.
MCILVAINE, J.

The only questions for decision in this case arise on the statute of May 5, 1868, (65 Ohio L. 146), which is as follows: "An act to protect the citizens of Ohio from Empiricism, and elevate the standing of the medical profession."

"SECTION I. That it shall be unlawful for any person within the limits of said State, who has not attended two full courses of instruction and graduated at some school of medicine, either of the United States or some foreign country, or who cannot produce a certificate of qualification from some State or county medical society, and is not a person of good moral character, to practice medicine in any of its departments for reward or compensation, or attempt to practice medicine, or prescribe medicine or medicines, for reward or compensation, for any sick person in the said State of Ohio; provided, that in all cases when any person has been continuously engaged in the practice of medicine for a period of ten years or more, he shall be considered to have complied with the provisions of this act, and that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions.

"SEC. II. Any person living in the State of

Ohio, or any person coming into said State, who shall practice medicine or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operation upon any person within the limits of said State, in violation of Section one of this act, shall, upon conviction thereof, be fined not less than fifty nor more than one hundred dollars for such offense, and upon conviction of a second violation of this act, shall, in addition to the above fine, be imprisoned in the county jail of the county in which said offense shall have been committed, for the term of thirty days, and in no case wherein this act shall have been violated, shall any person so violating receive a compensation for services rendered; provided, that nothing herein contained shall in any way be construed to apply to any person practicing dentistry."

"SEC. III. This act shall take effect and be in force on and after the first day of October, 1868."

The defendant in error claims, that the admission of his good moral character excludes him from the operation of the statute. The letter of the statute sustains this claim, but we think the evident intent of the legislature, being "to protect the citizens of Ohio from empiricism," as declared in the title of the act, was to exclude, from the profession of medicine and surgery all persons who do not possess both qualification and character, by making it unlawful for any person who has not the prescribed certificate or a good moral character to practice medicine for reward or compensation. In construing the stat ute in this respect, we must substitute the disjunctive "or" for the copulative "and."

The principal question in the case, however, is: In order to entitle the medical practitioner to reward or compensation for his services, under the proviso in the first section, must it be shown. that the period of ten years of continuous practice elapsed prior to the taking effect of the act, or is it sufficient to show that the period was complete at the time of rendering the service for which compensation is claimed? By the purview of the first section it is made unlawful for any person to practice medicine or surgery in the State of Ohio for reward or compensation without having graduated at a school of medicine, or producing a certificate of qualification from some State or county medical society. The evidence of qualification here prescribed is without limit as to date-it is sufficient that it can be shown to exist at the time when the right to practice is drawn in question. By the proviso, a period of ten years continuous practice is made exactly equivalent, to the evidence of qualification prescribed in the purview; and there is no reason, as far as the protection of the public is concerned, why a different rule should prevail as to the time when a person may qualify himself for the practice of medicine. If the experience of an empi ric, (the term empiric is here used as in the statute, to mean a medical practitioner who has not graduated in a medical college, or has a certificate of qualification from a medical society, or