
    John B. Kiley, App’lt, v. The Western Union Telegraph Company, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    1. .Telegraph companies not common carriers—Right t.o impose; regulations.
    Telegraph companies are not under the obligations of common carriers; they do not insure the absolute and accurate transmission of messages delivered to them; they have the right to make reasonable regulations for the transaction of their business and to protect themselves against liabilities which they would otherwise incur through the carelessness of their agents, etc.
    2. Same.
    The plaintiff, who was familiar with the defendant’s blanks, and who had read the words at the bottom of them, "read the notice and agreement at the top," alleged that he wrote the message in question on a mutilated blank, which blank contained the following words: “The sender of a message should order it repeated; that is, telegraphed back. For this, one-half the regular rate is charged in addition. It is agreed between the sender and company that said company shall not be liable for mistakes or delay in the transmission of any unrepeated message, whether happening by negligence of its servants or otherwise.” Held, that there was enough to show that the defendant was not to be responsible for an unrepeated message. That the plaintiff was bound by the stipulation contained in the. blank, and that it furnished a defense to any recovery except the amount paid for the transmission of the message.
    On the 11th day of March, 1883, the plaintiff, who was a. speculator in oil, living at Olean, in this state, went to the office of the defendant in that village, and there wrote and delivered to its agent for transmission to its brokers, Hilton & Waugh, in Bradford, Pa., a telegram as follows: “Buy the twenty-five in to-morrow morning at best,” and paid the charge, fifteen cents, for transmitting the same. By “twenty-five” was meant 25,000 barrels of oil, and the message was so understood by defendant’s operator. For some reason the operator could not send it by the direct line te Bradford, and, as was usual in such cases, he undertook to send it by way of Buffalo, and he told the plaintiff, who was-still at the office, that he had sent it, It did not reach Bradford and the brokers did not buy the oil, and in consequence thereof the plaintiff suffered damage which he brought this action to recover. The jury rendered a verdict in his favor. From the judgment entered upon the verdict the defendant appealed to the supreme court, general term, fifth department, where the judgment was reversed and a new trial was granted. The plaintiff then appealed to this court from the order granting a new trial. The other facts, so far as they are material, appear sufficiently in the opinion.
    
      J. H. Waring, for app’lt; Wager Swayne, for resp’t.
    
      
       Affirming 39 Hun, 158.
    
   Earl, J.

The telegram was written on one of the ordinary blanks of the company. Immediately above the telegram were the words, “ send the following message subject to the above terms which are hereby agreed to.” And below the telegram, in plain letters, were the following words, “read the notice and agreement at the top.” The blank with the telegram written thereon, when introduced in evidence, was partly mutilated, a portion thereof, the upper left hand corner having been torn off. When complete the blank contained this language: “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 the same.” The defendant relies upon this stipulation as a defense to any recovery in this action.

That a telegraph company has the right to exact such a stipulation from its customers is the settled law in this and most of the other states of the Union and in England. McAndrew v. Electric Tel. Co. (33 Eng. L. & Eq. R; 180); Western Union Tel. Co. v. Carew (15 Mich. 525); Ellis v. Am. Tel. Co. (13 Allen, 226); Redpath v. Western Union Tel. Co. (112 Mass. 71); Grinnell v. Western Union Tel. Co. (113 Mass., 299); Clement v. Western Union Tel. Co. (137 Mass., 463); Schwartz v. Atlantic & Pacific Tel. Co. (18 Hun, 157); Baldwin v. United States Tel. Co. (45 N. Y., 744); Breese v. United States Tel. Co. (48 N. Y., 132); Kirkland v. Dismore (62 N. Y., 171); Young v. Western Union Tel. Co. (65 N. Y., 163). The authorities hold that telegraph companies are not under the obligations of common carriers: that they do not insure the absolute and accurate transmission of messages delivered to them; that they have the right to make reasonable regulations for the transaction of their business, and to protect themselves against liabilities which they would otherwise incur through the carelessness of their numerous agents and the mistakes and defaults incident to the transaction of their peculiar business. The stipulation printed in, the blank used in this case has frequently been under consideration in the courts, and has always in this state, and generally elsewhere, been upheld as reasonable.

The plaintiff must be held to have assented to this stipulation. He was familiar with the defendant’s blanks, having used them extensively for several years, and he had frequently read the words at the bottom of them, “read the notice and- agreement at the top.” Therefore, although he may not have known what the precise terms of the stipulations contained in the blank were, yet he knew that some stipulations were therein contained, and he must be held by the use of the blank and its delivery to the defendant to have assented to them.

The evidence brings this case within the terms of the stipulation. It is not the case of a message delivered to the operator, and not sent by him from his office. This message was sent, and it may be inferred from the evidence that it went so far as Buffalo .at least: and all that appears further is that it never reached its destination. Why it did not reach there remains unexplained. It was not shown that the failure was due to the willful misconduct of the defendant, or to its gross negligence. If the plaintiff had requested to have the message repeated back to him, the failure would have been detected and the loss averted. The case is therefore brought within the letter and purpose of the stipulation.

But the trial judge held that if the blank upon which the message was written was torn and mutilated as it appeared when introduced in evidence, then the plaintiff was not bound by the stipulation and was entitled to recover: and he submitted to the jury the question as to the mutilation, and they returned a special verdict that “it was torn as it now is when it was delivered by the plaintiff.” We are of opinion that the alleged mutilation of the blank is not available to the plaintiff, in answer to the protection claimed by the defendant under the agreement for three reasons; (1) We think there was no evidence which authorized the finding by the jury that the blank was mutilated at the time it was delivered to the defendant. The plaintiff testified that he went to the defendant’s office and took up one of the blanks he found there, and wrote his message upon it, and that he could not say whether the blank was torn at that time or not: and there is no evidence whatever that it was then torn. There is every presumption that it was in perfect condition at that time, and no presumption that a blank at one time perfect had then become imperfect.

These blanks were carefully prepared by the defendant .and kept for use in its offices by its customers, and it is not to be supposed that they would keep mutilated blanks on hand, or that a customer would use a mutilated blank. The manager of the defendant’s office at Olean swore that he saw the message several times soon after it was delivered to the defendant’s operator, and that it was then, according to his best recollection, perfect and unmutilated, and that he afterwards saw it in Buffalo, and then for the first time discovered that a portion of it had been torn off. This is all the evidence on that subject, and we think it is wholly insufficient to show that it was torn at the time it was delivered to the defendant. , (2) Assuming that it was then torn, yet, when plaintiff wrote the message upon it, he must be supposed to have intended to be bound by the agreements mentioned therein. He knew that the blanks, when complete, contained certain agreements, and by using this blank and delivering it to the company, although torn at the time, he must be held to be bound by the agreements contained in a perfect blank. There was no intent to be bound by less, and the mutilation was not intended for the purpose of altering, changing or destroying the agreements. (3) Enough remained upon the blank as mutilated to show the agreement. It contained the following words: The sender of a message should order it repeated; that is, telegraphed back. For this, one-half the regular rate is charged in addition. It is agreed between the sender and company that said company shall not be liable for mistakes or delays in the transmission of any unrepeated message, whether happening by negligence of its servants or otherwise.” If the language was not full and clear the plaintiff was put upon inguirv, and could have learned the full force of the stipulation by referring to a perfect blank. There was enough to show that the defendant was not to be responsible for an unrepeated message.

We are, therefore, of opinion that the plaintiff was bound by the stipulation contained in the blank, and that it furnished a defense to any recovery except the amount paid for the transmission of the message, and thus it becomes unimportant to examine other grounds of defense brought to our attention.

The order of the general term should be affirmed and judgment absolute rendered against the plaintiff, with costs.

All concur except Ruger, Oh. J., not voting, and Dan-forth, J.,  