Kiley v. Western Union Tel. Co.

• Decision Date: 10 April 1888
• Parties: KILEY v. WESTERN UNION TEL. CO.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 231

16 N.E. 75

KILEY

v.WESTERN UNION TEL. CO.¹

Court of Appeals of New York.

April 10, 1888.

Appeal from general term, supreme court, Fifth department.

Action by John B. Kiley against the Western Union Telegraph Company to recover damages for the non-delivery of a 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 his 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 to 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 general term, 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.

DANFORTH, J., dissenting.

J. H. Waring, for appellant.

Wager Swayne, for respondent.

EARL, J., ( after stating the facts as above.)

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. Telegraph Co., 33 Eng. Law & Eq. 180; Telegraph Co. v. Carew, 15 Mich. 525;Ellis v. Telegraph Co., 13 Allen, 226;Redpath v. Telegraph Co., 112 Mass. 71;Grinnell v. Telegraph Co., 113 Mass. 299;Clement v. Telegraph Co., 137 Mass. 463;Schwartz v. Telegraph Co., 18 Hun, 157; Baldwin v. Telegraph Co., 45 N. Y. 744;Breese v. Telegraph Co., 48 N. Y. 132;Kirkland v. Dismore, 62 N. Y. 171;Young v. Telegraph 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...