
    Thomas W. Pearsall, Resp’t, v. The Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Negligence—In the transmission of a telegram—Agency.
    This action was brought to recover damages for the alleged negligence of the defendant in the transmission of a telegraphic message. The office from which the message was sent was maintained principally by the railroad upon which it was situated for reporting the movements of trains, but there was one of the defendant’s signs at the station,and there existed between the railway company and defendant a contract that at all the telegraph stations on the road, the employees of the railroad, acting as agents of the telegraph company, should receive, transmit and deliver such commercial or paid messages as might be offered at the tariff rates of the telegraph company, and should pay over to it the receipts derived from such business. The operator at this station was not directly in the railroad employ, but acted for his father, who was the station agent at that place. Held, that he was properly accounted the agent of the defendant in receiving and sending the plaintiff’s message so as to make the defendant responsible for any omission of duty with reference thereto on his part.
    3. Same—Evidence—Exclusion of.
    The message in question was written not upon one of the defendant’s printed blanks, but on a plain sheet of paper. Held, that the printed notice usual on the defendant’s blanks, which laid down certain rules by the observance of which greater accuracy in the transmission of messages might be insured was properly excluded when offered in evidence by the defendant.
    3. Same—Evidence—What will not sustain presumption.
    Held, that in view of the fact that the message was not written on one of the printed blanks of the telegraph company, and the absence of proof that the plaintiff had knowledge of the conditions therein contained he could not be presumed to have assented to them.
    4. Same—Shareholder not presumed to know the rates oe the corporation.
    
      Held, that the plaintiff could not be presumed to know the rates of the defendant company because a shareholder therein.
    5. Same—Evidence establishing prima eacie case.
    
      Held, that the misdirection of the message and its delivery to such wrong address was prima facie evidence of negligence on the part of the defendant, and the burden of proof was on the defendant to show that it did not happen through its fault.
    5. Same—Charge to jury.
    The jury having been carefully instructed that the defendant was liable only for ordinary care and that the fact of misdirection and misdelivery being proved and not denied, there was a prima fade case of want of ordinary care: Held, that a refusal to charge that there was no evidence of gross negligence or wilful misconduct on the part of the defendant was not error.
    Appeal by defendant from judgment, entered upon the verdict of a jury at circuit, and from order denying motion for new trial.
    
      Burton N. Harrison, for app’lt; Thomas G, Shearman, for resp’t.
   Bartlett, J.

This is an action to recover damages for the alleged negligence of the defendant in failing accurately to transmit a telegraphic message from Great Neck, Long Island, to the city of New York. On July 31st, 1884, some person in behalf of the plaintiff, delivered to a telegraph operator at the station of the Long Island Railroad at Great Neck, without pre-payment, a message for transmission to New York, in the following words :

Great Neck, L. I., July 31st.
T. W. Pearsall & Co., Mills Building, New York City:
Buy one thousand Western Union Telegraph.
T. W. Pearsall.

This message was written, not upon one of the partly printed blanks of the Western Union Telegraph Company, but on an ordinary sheet of note paper, with no conditions whatever printed thereon. It was delivered at the office of T. W. Pearsall & Go., in New York, where the company’s charge of twenty-five cents was paid, on the morning of the same day. But the words & Co.” in the address were omitted, and the telegram was inclosed in an envelope addressed simply to “T. W. Pearsall.” No person in the office of the firm possessed authority to open a message thus addressed to the plaintiff personally. Consequently, the telegram remain unopened until Mr. Pearsall’s arrival in the city on the following day. In the meantime, the price of Western Union Telegraph Company’s stock, to which the message related, haa advanced ; and the plaintiff, who bought the stock shortly after his arrival in New York, had to pay more for it than his firm would have been obliged to pay on the day when the message was sent. He brings this suit to recover the amount represented by the advancing price.

It is contended, in behalf of the defendant, that the telegraph operator at Green Neck Was not the agent of the Western Union Telegraph Company, and, therefore, that the corporation is not liable for any negligence on his part. This operator worked in the depot for his_ father, who was the station agent of the Long Island Railroad Company, which maintained a telegraph office there, used principally for reporting the movements of trains. There was a sign of the Western Union Telegraph Company at the station, however, and this operator took all the business that was offered at that place for the company.

The contract between the defendant and the railroad corporation provided that at all telegraph stations on the line of railroad, the railroad employees, acting as agents of the telegraph company, should receive, transmit and deliver such commercial or paid messages as might be offered at the tariff rates of the telegraph company, and should pay over to the telegraph company the receipts derived from such business. This was a commercial message, paid for at the place to which it was sent. Although the boy who-undertook to transmit it was not directly in the employ of the railroad, the functions which he performed for his father in reference to the business of the railroad, and the services which he was permitted to perform as a telegraph operator, not only for the railroad, but for the telegraph company, can leave no doubt that he acted as the agent of the defendant in receiving and sending the plaintiff’s message so as to make the defendant responsible for any omission of duty with reference thereto on his part.

The defendant offered evidence tending to show that it had established reasonable rules and regulations to guard against mistakes in the transmission of telegraph messages which required the sender of a message to have it repeated, that is, telegraphed back to the office whence it came' for purposes of comparison. It also offered evidence showing that notice of this regulation was printed upon its ordinary message blanks, but counsel was not allowed to read this notice to the jury. In view of the uncontradicted testimony of the plaintiff, it was immaterial. The message in question was not written upon one of the ordinary blanks of the defendant, nor had the plaintiff ever read the printed matter on such blanks, nor had he any knowledge of the terms and conditions specified thereon.. Under these circumstances, it is difficult to see on what principle he could be held to have assented to the regulation in regard to unrepeated messages, or how he could be bound thereby. It is true, he was familiar with the general appearance of the blanks, and had been for many years, and had frequently sent messages written on such blanks. Bundles of them lay in his office for use, and he had been in the habit of taking blanks from among these, and of writing and sending messages on them himself. These facts, however, do not estop him from denying any knowledge of the notice or xi^s contents

In Breese v. U. S. Telegraph Co., (48 N. Y , 132), the principle of estoppel was applied because the sender of the message, after abundant time and opportunity to read the printed matter on the company's blanks in his possession, wrote the telegram on one of those blanks Hence, says Earl, J . in that case, when the message was thus written and brought to the office of the company, its agent had the right to assume and believe that the sender accepted the terms and assented to and understood the agreement limiting liability for unrepeated messages. But nothing of the sort occurred in the present case. The message was written on a sheet of common white paper, and thus accepted for transmission. If the plaintiff is to be held bound by the regulations of the defendant company just as much as though he had written this message on one of its blanks, it can only be upon proof that he knew what those regulations were. This is the extent to which the opinion goes in the case of the Western Union Telegraph Company v. Buchanan (35 Ind., 429).

But the plaintiff testifies positively that he nad no knowledge of these regulations, and we think a finding in opposition to his testimony on this subject, notwithstanding the opportunities he had to read the printed matter on the blanks, would have been so manifestly against evidence as to require the court to set aside the verdict.

It is insisted, however, that the plaintiff must be deemed to have known the rules of the defendant as to unrepeated messages, because he was a shareholder in the Western Union Telegraph Company. On this theory, the minutes of a meeting of the directors of the company, held in 1856, were offered in evidence, reciting the adoption of certain rules as to the liability of the defendant for mistakes or delays in messages. These minutes were properly excluded, for several reasons. In the first place, the rules to which. they refer appear to have been superseded by new ones promulgated in 1884. Then there is no evidence whatever that the plaintiff actually knew of their contents, and no such knowledge can be imputed to him merely because he was a stockholder. While the owner of shares in an incorporated company is, under some circumstances, chargeable with a knowledge of the contents of its books, he is not simply as a stockholder bound to know the rules and regulations which the directors may prescribe for the transaction of the business of the company with the public generally, merely because such rules and regulations appear recorded on the minute books of the corporation. No case is cited by the learned counsel for the appellant which sustains his position on this point.

The appellant also complains because the court charged the jury that the misdirection of the message, and its delivery addressed to T. W. Pearsall, at the office of his firm, when it should have been addressed to T. W. Pearsall & Co., was of itself prima facie evidence of negligence. This instruction is sustained by authority. In Rittenhouse v. Independent Line of Telegraph (44 N. Y., 263), it is said: “The defendant was hable on the ground of negligence in the transmission of the message, and the negligence is proved by showing that it did not transmit the message in the form in which it was delivered to it. The burden was upon it to show that' the mistake happened without its fault. ”

Indeed, if any other rule prevailed, it would be exceedingly difficult to ever enforce the liability of a telegraph company for negligence of this character, the entire line and apparatus being so exclusively within its own control, as to render it almost impossible for an outsider to obtain any information as to the causes which led to the mistake.

There is no force in the suggestion that the plaintiff himself was negligent in the manner in which"he sent the message. The measure of damages adopted by the trial court seems to have been correct. The refusal to charge that there was no evidence of gross negligence or wilful misconduct on the part of the defendant, was not error. The jury had been carefully instructed in the main body of the charge that the defendant was hable only for ordinary care, and that the fact of a mis-direction and mis delivery being proved, and not denied, there was a prima facie case of want of ordinary care.

Nothing was said about gross negligence by the court, or by anybody but the defendant’s counsel, until this request was made, and then the court simply refused to charge it. The case as presented to the jury, involved no question of gross negligence or wilful misconduct, and there was no occasion to give any instruction on the subject, one way or the other.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Van Brunt, 0. J., and Bartlett, J., concur.  