
    Maggie Curtin, Appellant, v. The Western Union Telegraph Company, Respondent.
    (Supreme Court, Appellate Term,
    March, 1896.)
    1. Telegraph companies — Liability for delay in delivery — Limitation of.
    A telegraph company may limit its liability for delay in the delivery of a message caused by the negligence of its servants; and a stipulation to that effect printed oh the blanks furnished by the company constitute a contract which binds the sender and the person to whom the message is produced, if the assent of the sender to such stipulation can be presumed.
    2. Same.
    In this case the conceded facts were that the sender on the day oC his brother’s death went to the telegraph office in St. Louis and’ wrote on the blank he procured there the following message to his sister in New York: “ Con. died this morning. Can you come? ” that he did not read the printed matter on the face or back of the message and was ignorant of the contents of such printed matter or that the message was to be transmitted subject to the terms contained in the printed matter; that nothing was said to him about it and his attention was. not called to it. Held, to be a question whether the stipulations contained in the printed matter were assented to, and a finding that they were not will not be disturbed; that the admitted facts seem to leave no room for inferring assent.
    3. Same — Damages.
    The delivery of the message having been delayed for four days and the deceased having been meanwhile buried, his sister, who, was expecting news of him in order to go to St. Louis if he died and remove his body to New York, fell ill in consequence of the delay. Held, that she was entitled to recover damages for her illness and a verdict of $125 was sustained.
    Appeal by the plaintiff from an order of the General Term of the City Court of New York, reversing a judgment in her favor, rendered by the trial judge, without a jury, and ordering a new trial.
    The action was brought to recover damages for the nondelivery of a telegraphic message received by the defendant in St. Louis, from Henry Curtin, and addressed to his sister, the plaintiff, in
    
      Hew York, advising her of the death'of their brother, and was in .these words:
    “ St. Louis, Mo., July 12, 1892. .,
    “ To Maggie A. Cuetim, 12 Hubert St., Hew York: .
    “ Con. died this morning. Can you come? ”
    « H. 0.”
    It was not delivered to plaintiff until four days afterward, July 16, 1892. The message was written by Henry Curtin on a blank form of. the defendant company, which he got at its office. On. the form Immediately over the space for the message was printed:
    “ Send the following message subject to the terms. on the back hereof, which are hereby agreed to,” and at the foot of the blank space were the words: “ Read the notice and agreement on the
    back,” On the.back of the message was printed: “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, telegraph 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 nondelivery, of any unrepeated message beyond the amount received for sending the same.”
    The action was tried by the court without a jury upon an agreed-statement of facts and judgment was rendered in favor of the plaintiff for damages, $125, besides costs.
    Lyman W. Redington, for appellant! -
    Rush Taggart, for. respondent.
   Daly, P. J.

A telegraph ■ company incorporated under the general statutes of this state may, by contract, limit its liability for' mistakes or delays in the transmission or delivery, or for the nondelivery of messages, caused by the negligence of its servants if. the negligence'be not gross. . Pearsall v. Western Union Telegraph Company, 124 N. Y. 256, 267. The stipulation for exemption from liability contained in the printed blank of the company, upon' which the sender writes his message, constitutes a contract which, binds him and the person to whom the message is addressed,.if the assent of the sender to such stipulation, can he presumed. Thus where blanks have been for some time in the possession of the sender, he being the president of a bank and having had abundant-opportunity to read them, he was presumed to have understood their contents, and was held estopped from denying the agreement printed upon the blank on which he wrote his message. Breese v. U. S. T. Co., 48 N. Y. 132. But, in that case, it was said he would not be estopped if the blank had been delivered to him at the time he wrote the message upon it, and he had no opportunity to read it, and to the knowledge of the telegraph operator had not read it.. In such'case there would be no room for the application of the doctrine of estoppel, and no reason for indulging in presumptions.

In another case, where the sender of the telegram was shown to be familiar with the blanks of the company and had used them . extensively for several years and had read the words at the bottom of them, “ Bead the notice and agreement at the top,” it was held, for that reason, although he may not have known what the precise terms of the stipulation contained in the blank were, yet, as he .knew that some stipulations were therein contained, he must be held by the use of the blank, and Its delivery to the defendant, to have assented to them..- Kiley v. W. U. T. Co., 109 N. Y. 236.

In the present case, according to the agreed facts, the- sender of the message on the day of his brother’s death went to one of the offices of the defendant company in the city of St. Louis, and taking a blank of the defendant, wrote thereon the message in question to his sister and paid for it, but did not read the printed matter upon the face, or the back, of the message, and was ignorant of the contents, of such printed matter and that-the message was to be transmitted subject to the terms contained in the matter, and nothing was said to him about it, nor was his attention called to it by the defendant’s agent. Upon these facts, if there were a question whether the sender agreed to the stipulations of the printed blank, there were no such circumstances as were held in the cases cited to warrant the inference that the stipulations were accepted or assented to. The facts agreed on would seem to leave no room for such an inference in this case. The decision of the trial judge in the plaintiff’s favor necessarily found that, there was no assent to these stipulations, and his decision upon ■the facts ought not to be disturbed.

In the case of a message delivered unconditionally, the mere fact that it was not promptly delivered makes out a prima.'facie case of negligence. Baldwin v. U. S. Tel. Co., 45 N. Y. 744; Pearsall v. W. U. T. Co., supra. In this case the message was received by the company in New York on the day of its receipt in St. Louis, July 12, but was not delivered to the plaintiff in. New York until four days' thereafter.. This was not a prompt delivery and no excuse for the delay was offered. The plaintiff was, therefore, entitled to recover the damages directly resulting from the defendant’s negligence.

The plaintiff was expecting to receive news of her brother Con, or Cornelius, who was ill in St. Louis. She .had been in St. Louis in the month of July, prior to the 12th, and when she- left for New York requested her brother Henry to telegraph her if Cornelius should grow worse or die¿ as she desired to remove his body to New York for burial. She did not receive news, of her brother’s death until after he was dead and buried, owing to the delay in the delivery of the message. ' It was agreed, in the facts submitted to the court, that the plaintiff became sick in- consequence of learning of the death and burial of her brother and because she was not able to be present at his death and burial, and that she expended $20 for'medical services and $5 for medicine in her sickness. The trial judge allowed $125, not an Unreasonable allowance, for her illness, and as the findings do not show any particular sum allowed for any particular item 'of damage, there is no specific finding disclosing error. Collender v. Phelan, 79 N. Y. 366. The defendant is liable for such damages as were fairly to be anticipated by the parties as resulting from the delay. Baldwin v. U. S. T. Co., 45 N. Y. 744; Western Union T. Co. v. Hall, 124 U. S. 444; Primrose v. W. U. T. Co., 154 id. 1. ‘ The damages allowed for in this case may be reasonably deemed to have been' within the contemplation of the parties, because the message suggested the importance of the communication to the ■ plaintiff and the probable effect upon her feelings of delay in its delivery. ' Delay in the transmission of a telegraphic communication of death may be productive of an injury to the feelings for which damages may be awarded. Shearm. & Redf. on Neg., § 756. It is urged by defendant that it could, not be inferred ' that illness might result to plaintiff by failure to deliver a messagé to her: “ Con. died this morning. Can you come? ” Where the delayed dispatch was: Dell is worse. Come at once. Sister Annie,” the Federal court allowed damages. Beasley v. W. U. T. Co., 39 Fed. Repr. 182. In this case, although the relationship of the sender to the person addressed is ■ not so clearly to be inferred as it might b.e in. the above dispatch, signed “ Sister Annie,” yet there is as’ much reason in the one case as in the other for assuming that the message announced the death: 0f a relative or intimate friend. _ “ Con. died this morning. . Can you come?” indicates as strong a personal interest as “Dell.is worse. Gome at once.” The signature “ H. 0.” indicates familiarity and intimacy, and the identity of the initial of the last name of the sender and the person addressed is a circumstance from which relationship might be inferred.

The order for a new trial should be reversed.and the judgment of the Trial Term affirmed, with costs of appeal in the City Court and in this court.

MoAdam and Bischoff, J.J., concur.

Order reversed and judgment of Trial Term affirmed, with costs.  