
    Henry J. Mowry et al., Resp’ts, v. The Western Union Telegraph Company, App'lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1889.)
    
    1. Telegbaph company—Limitation op liability.
    Where a telegraph blank contained the following provision: “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 tor sending the same,’’ Held, that the contract did not limit the plaintiff’s right of recovery where loss is occasioned by the gross negligence of the defendant.
    2. Same—Evidence—Sufficiency of.
    Where a message is delivered to the operator in charge of defendant’s office and by his negligence is not sent until seven or eight days after-wards, Held, that this evidence was sufficient to warrant the jury in finding that the defendant was guilty of gross negligence.
    3. Same—Oontbact—Constbuctión.
    Where plaintiff received a message through the defendant giving the price of hams, etc., and on the same day delivered to defendant at the same office this reply: “Will take two cars sixteens. Ship soon as convenient, via West Shore,” Held, that the contents of the message was such as to clearly indicate that it was important, and that a failure to send the message might result in damage to the plaintiffs.
    Appeal from a judgment of the Onondaga county court, entered for $249.05 upon the decision of the court.
    
      Hiscock, Doheny & Hiscock, for resp’ts; J. William Wilson, for app’lt.
   Martin, J.

That this action was properly brought against; the defendant in not questioned. On August 7, 1885, the plaintiffs received through a telegraph office at Syracuse, managed and -controlled by the defendant, the following message:

“Dated Chicago, Illinois, 7th.
“Received at Syracuse, N. Y., 11:50 A. M., August 7> 1885.
“ To Mo wry & Barnes:
“ Pickled hams, sixteens nine and a half; shoulders, five quarters; lard, six thirty-two and a half; beef hams, nineteen.
“ARMOUR & 00.”

On the same day, and after the receipt of this message, the plaintiffs prepared and caused to be delivered to the defendant at the same office a message which was as follows:

“ Syracuse, August 7, 1885.
“To Armour & Co., Chicago:
“ Will take two cars sixteéns. Ship soon as convenient, via West Shore.
“Mowry & Barnes.”

The plaintiffs paid the regular tolls or charges established by the defendant for the transmission and delivery of such message, but not the charges for a repeated message. The blank upon which this message was written contained the following provisions: “ 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 company will not be liable for damages in any case where the claim is not presented, in writing within sixty days after sending the message.”

The message from the plaintiffs to Armour & Co. was in answer to the message by Armour & Co. to plaintiffs, whereby they offered to the plaintiffs, hams, sixteens at nine and one half cents per pound; and plaintiffs’ message was an acceptance of such offer and an order for two car loads of such hams at that price..

When the plaintiffs’ message was delivered at the defendant’s office the operator in charge placed it among the messages to be sent. When, in the order of transmitting messages, it was reached, it was taken by the defendant’s operator from the place where messages to be sent were kept and he called the office to which it was. to be transmitted and found the wire in use. While waiting his attention was engaged by some person having business at the office, and before attending to him the operator placed the plaintiffs’ message among the messages that had been sent. As a consequence the message was not sent until seven or eight days afterwards, when the plaintiffs called the operator’s attention to the fact that it had not been sent. It was then sent without the plaintiffs’ knowledge. Between the time of the delivery of this message to the defendant and the time when the plaintiffs’ first learned that it had not been sent the market price of the hams ordered advanced one half a cent a pound, and by reason of the defendant’s neglect to send such message the plaintiffs’ were compelled to pay $225 more for the same goods than they would have purchased them for if such telegram had been sent and delivered within a reasonable time.

Within sixty days after the delivery of such message the plaintiffs presented a claim to the defendant for the damages sustained by them, which was rejected by the defendant, except that it offered to repay the plaintiffs the sum paid for the transmission and delivery of such message.

On the trial the court found that the omission to send such message was due to the gross carelessness and negligence of the defendant; that by reason thereof the plaintiffs sustained damage to the amount of $225, and ordered judgment for the plaintiffs for $200 and costs.

The only question presented on this appeal is the question of damages. The defendant claims that the only damages that the plaintiffs were entitled to recover was the sum of twenty-two cents paid for the transmission and delivery of this message. This claim is sought to be maintained on the grounds: First, that the defendant’s liability was limited by the provisions contained in the blank upon which thé message was written; and second, that independent of those provisions the plaintiffs could recover only the sum paid for sending the message.

Upon the first of these propositions the defendant in its brief says: “Telegraph companies have the right to make reasonable rules for the conduct of their business, and can limit their liability for mistakes not occasioned by gross negligence or willful misconduct by notice brought home to the sender of the message or by special contract.” The correctness of this statement of the law is not disputed by the plaintiffs, so that the question is not as to the rule contended for, but as to its applicability to the facts of this case. The rule as stated excepts from its operation a liability occasioned by gross negligence or willful misconduct. The plaintiffs claim that the loss sustained by them was caused by the gross negligence of the defendant. The court so found. Wé think the evidence sufficient to uphold that finding. Hence, we conclude that the contract between the parties did not limit the plaintiffs’ right of recovery to the amount paid by them for the transmission and delivery of the message.

But the defendant also claims that the plaintiffs could only recover such damages as were the natural and necessary consequence of the defendant’s failure to send this message; that the plaintiffs’telegram was designed fora special purpose which was not disclosed to the defendant; ■ and that the damages awarded were for an injury sustained by not accomplishing that purpose, and hence it was not liable. As sustaining this claim it cites the cases of Baldwin v. The U. S. Tel. Co. (45 N. Y., 744), Hart v. Di rect U. S. Cable Co. (86 N. Y., 633) and McColl v. W. U. Tel. Co. (7 Abb. N. C., 151).

The doctrine of the cases cited is, that a telegraph company is not liable for a special loss caused by delay or nondelivery of a message, where it has no notice, either by the contents of the message or otherwise, indicating its importance, or that special damages will result from its neglect. _ Assuming, as we do, without passing upon the question, that this doctrine is applicable where the injury results from the gross negligence of the defendant, and the question is, whether the doctrine of those cases is prohibitive of recovery of the damages awarded herein.

In this case there w~as no evidence of any notice to the defendant of the purpose of the message, of its importance, or that special damages would result from a neglect to send it, other than that given by the contents of the message, which the plaintiffs sought to have sent, and by the contents of the message received, to which the plaintiffs’ message was a reply. But on the 7th of August the plaintiffs received a message from the defendant, which gave the price of hams, shoulders, lard and beef hams. In answer to that, the plaintiffs on the same day delivered to the defendant at the same office this reply: “Will take two cars sixteens. Ship soon as convenient, via, West Shore. ’’That the defendant must, from this transaction, and from the contents of these telegrams, have clearly understood that the plaintiffs were accepting an offer made by Armour & Co., and purchasing two car loads of hams at the price named, there can be little or no doubt. We think that the contents of this message was such as to indicate clearly to defendant that it was important; that a contract for the purchase of two car loads of hams was being made by the parties, and that a failure to send the message must result in such loss to the parties as would naturally follow from a. failure to complete such contract.

We are of the opinion that the defendant was liable to the plaintiffs for the damages which were awarded in this case. Leonard v. N. Y., A. and B. Electro Magnectic Co., 41 N. Y., 544; Rittenhouse v. Independent Line of Telegraph, 44 id., 263; DeRutte v. N. Y., A. and B. Tel. Co., 1 Daly, 548; Bryant v. Am. Tel. Co., 1 id., 575; Sprague v. W. U. Tel. Co., 6 id., 200, affirmed 67 N. Y., 590; Pearsall v. W. U. Tel. Co., 44 Hun, 532; 9 N. Y. State Rep., 132; U. S. Tel. Co. v. Wenger, 55 Pa., 262; Squire v. W. U. Tel. Co., 98 Mass., 232; Thompson v. W. U. Tel. Co. 64 Wis., 531; Manville v. W. U. Tel. Co., 37 Iowa, 214.

It follows that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Kennedy, J., concurs; Follett, P. J., concurs in result.  