
    Edward S. Dixon, Respondent, v. The Western Union Telegraph Company, Appellant.
    
      Telegraph corporation — astipulation in its Manic against its own negligence does not relieve against gross 'negligence.
    
    In an action brought to recover damages resulting from the alleged negligence of the defendant in delivering a telegraphic message, it appeared that F. & Brennison & Son wrote to the plaintiff, who lived at Halls, New York, to inquire the price at which the plaintiff would sell a quantity of apples, in reply to which the plaintiff wrote out and sent by the defendant a message which read as written: “One dollar-fifty, freight thirteen cents. Answer quick;” this message when received hy F. G. Brennison & Son did not contain the word “ fifty.” The plaintiff’s offer was accepted, the apples were shipped, and the plaintiff by reason of the error in the message sustained a loss.
    Upon the defendant’s blank was the following notice: “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,” and it was further stated that, unless a message was repeated, the defendant should not be liable, even in a case of negligence, for more than the amount received for sending the message.
    It was shown that when the message was received at Buffalo it contained upon its face the figure “8,” indicating that it originally consisted of eight words, while the message as delivered consisted of but seven words.
    The plaintiff testified that, although he had been using these blanks for twenty-five years, he did not know of the stipulation contained in them limiting the liability of the defendant. The court found' that the defendant was guilty of gross negligence and rendered judgment in favor of the plaintiff for §247.66, with interest and costs.
    
      Held, that the plaintiff had ample opportunity to acquaint himself with the conditions printed upon the blank, and that it was his own fault if he omitted to read them;
    That although he was bound by the conditions the. company was liable because it had been guilty of gross negligence;
    That a telegraph corporation could not, by notice to the public, limit its liability when its negligence was gross or its conduct willful;
    That the claim of the defendant, that it was exonerated from liability because it had no knowledge of the special purpose which the plaintiff had in'view when he sent the message and that the message did not disclose its purpose, was not tenable, as the message, upon its face, plainly indicated, an important business transaction.
    Appeal by the defendant, The Western Union Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 29th day of March, 1895, for $421.34, upon the decision of the court, rendered after a trial at the Ontario Circuit, before the court, without a jury.
    This .action was brought to recover damages for. alleged negligence of defendant in receiving and delivering a telegraphic message.
    On or about November 18, 1891, F. G. Brennison & Son, commission merchants and produce dealers in Buffalo, made inquiry by mail of the plaintiff, a produce and commission merchant at Halls, as to the price at which plaintiff would sell that firm a quantity of apples then owned hy and in possession of plaintiff, at Halls. In response to such inquiry, the plaintiff delivered to defendant, at its office at Stanley, N. Y., for transmission,, a message in writing, as follows : '
    “ Halls, N. Y., ll-18th ■—1891.
    “To F. G. Brennison & Son, Buffalo, 44 W. Market, and 103 Michigan street:
    One dollar fifty, freight thirteen cents. Answer quick.
    “E. S. DIXON.”
    ■This message was written on one of the ordinary blanks of the company, which 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 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.”
    At the time of such delivery plaintiff paid to defendant the regular toll for transmitting such message, being the sum of twenty-five cents. Plaintiff did not order it repeated. The message was plainly written and promptly and accurately sent by defendant’s agent at Stanley to the office of defendant at Buffalo.
    This message when received at Buffalo contained also the figure 8 ” on its face to indicate, as was the custom of defendant, the number of words, besides the date, direction and signature contained therein. The agent and operator at Buffalo in taking and transcribing -such message omitted the word “ fifty ” and delivered the message thus altered to Brennison & Son. The message as delivered contained but seven words, although the figure “ 8 ” appeared thereon, indicating that when received at Buffalo it contained eight words. Brennison & Son received the message in its altered condition, accepted the proposition as contained therein, and immediately telegraphed plaintiff to ship two carloads of apples to that firm, which the plaintiff did on the same day; the two carloads contained 401 barrels of apples and were consigned to the buyers at Buffalo, and soon thereafter plaintiff drew upon them for the sum of $601.50, being the price therefor at one dollar and fifty cents per barrel. Payment of draft was refused and same returned by Brennison & Son for the reason that it did not represent, or call for the amount the purchasers claimed they had agreed to pay for the apples.
    Explanation was requested and given and the mistake was discovered. In the m'eantime the. apples were received at Buffalo, and the same were shortly thereafter placed in cold storage and kept therein until afterwards disposed of in lots, the last of which were not sold until the following April.
    After issue joined herein trial was had at the Ontario Circuit; at the close of the evidence it was, by stipulation, taken from the consideration of the jury, and submitted to the justice presiding at the trial for his decision. Thereafter he rendered his decision in favor of the plaintiff, and ordered judgment for the sum of $241:66, with interest from November 18, 1891, with costs, and thereupon the judgment appealed from was entered.
    
      Peter II. Vam, Auken, for the appellant.
    
      John Gillette, for the respondent.
   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’ 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 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.  