Dixon v. Western Union Telegraph Co.

Green, J.: Plaintiff claims he is not bound by conditions and stipulations indorsed on the message, because, as he claims, he did not know they were the conditions of sending a message. It appears, however. from his evidence that he had used such blanks in sending messages for twenty-five or thirty years, extending down to the time of the trial; that during that period he sent from twenty-five to fifty messages a .month. He testified that, although he had used this blank for more than twenty-five years, he never had read the printed conditions thereon; that he did not know they were the conditions of sending a message, nor that they were put there as a regulation of the company; that he did not, after twenty-five years’ [64] úse of such blanks, know that he sent his messages subject to such conditions, but that he saw them very frequently and could have read them if he chose so to do. The plaintiff sent the message upon a blank containing the conditions and regulations of the company. He voluntarily .signed and executed the contract, and had full opportunity of information as to its contents, and cannot avoid it on the grounds of his negligence or omission to read it, or to avail himself of such information. If he omitted to read the contract, or become informed of its terms and conditions, it was his own fault. (Breese v. U. S. Tel. Co., 48 N. Y. 132, 139 ; Bennett v. W. U. Tel. Co., 18 N. Y. St. Repr. 778; Kiley v. W. U. Tel. Co., 109 N. Y. 231; Primrose v. W. U. Tel. Co., 154 U. S. 1, 20.) Yet, notwithstanding that the plaintiff assented to those conditions and stipulations, the company was not thereby released from performing, upon its part, the covenants and agreements to be by it performed, if it was guilty of gross negligence in the transaction. A telegraph company, incorporated under the General Telegraph Act, may, by contract, limit its liability for mistakes or delays in the transmission and delivery, or for non-delivery of messages caused by negligence of its servants, if the negligence le not gross, to the amount received for sending the dispatch; but such company cannot, by notice,, limit its liability in this respect by any form of contract, when its negligence is gross or its conduct willful. (Kiley v. W. U. T. Co., 109 N. Y. 236; Pearsall v. W. U. T. Co., 124 id. 256; Mowry v. W. U. T. Co., 51 Hun, 126.) The learned justice before whom the case was tried finds, as matter of fact, that defendant was grossly negligent in the receipt and delivery of the message in question. There is evidence amply sufficient to sustain this finding. There is evidence also tending to show that plaintiff presented his claim for damages to the company pursuant to the terms and conditions of the contract. That, within the period of time prescribed by the terms of' the contract the company had notice of plaintiff’s claim, cannot be disputed, for it appears from the evidence of the defendant itself that within ten days or two weeks from the time of sending this dispatch and the, receipt of the same at Buffalo, the defendant, through its agent, tendered plaintiff the sum of twenty-five cents in payment of his [65] loss occasioned by such negligent delivery of this message, showing conclusively that notice of plaintiff’s claim had come to the company. Defendant further insists that it is exonerated from liability because neither the company- nor its agent had knowledge or means of knowledge of the special purpose of the plaintiff, and that the message did not disclose it. This claim is not tenable. The. message upon its face plainly indicated a business transaction; and that it was important also appeared upon the face of the message. It was not only sent by telegraph, but the message itself bore an injunction to the receivers to “ Answer quick.” The record discloses no exception by defendant that raises the question as to whether the true rule for the measure of damages in this case was adopted by the learned justice in arriving at the amount of damages. So far as appears from the record, both parties have acquiesced in the rule adopted, and, therefore, no necessity arises for discussing that subject. The judgment should be affirmed, with costs. All concurred, except Hardin, P. J., not sitting. Judgment affirmed, with costs.