Pearsall v. Western Union Tel. Co.

• Decision Date: 22 January 1891
• Citation: 26 N.E. 534,124 N.Y. 256
• Parties: PEARSALL v. WESTERN UNION TEL. CO.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 256

26 N.E. 534

PEARSALL

v.WESTERN UNION TEL. CO.

Court of Appeals of New York,

Second Division.

Jan. 22, 1891.

Appeal from a judgment of the general term of the supreme court of the first judicial department, which affirmed a judgment entered on a verdict in favor of the plaintiff for $1,757.86 damages. In July, 1884, the plaintiff was a member of the firm of T. W. Pearsall & Co., bankers and brokers, engaged in business at the Mills building, No. 17 Broad street, in the city of New York. At about 8 o'clock in the forenoon of July 31, 1884, the plaintiff wrote on a sheet of blank paper, and delivered to the telegraph operator at the station of the Long Island Railroad at Great Neck, the following telegram: ‘Great Neck, L. I., July 31st. T. W. Pearsall & Co., Mills building, New York city: Buy one thousand Western Union Telegraph. T. W. PEARSALL.’ The message was not prepaid, but it was delivered at the office of T. W. Pearsall & Co. before 10 o'clock in the forenoon of the same day, where the charge of 25 cents for its transmission was paid. The operator who received the message and transmitted it from Great Neck addressed it to ‘T. W. Pearsall, Mills Building, New York City,’ and it was so received by the receiving operator in New York, so written out on defendant's blank form No. 1, sealed in an envelope, and addressed, ‘T. W. Pearsall, Mills Building, New York City.’ The following is a copy of the message as transmitted from Great Neck and as delivered:

‘Form No. 1. The Western Union Telegraph Company. This company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in writing within sixty days after sending the message. This is an unrepeated message, and is delivered by request of the sender under the conditions named above.

‘THOMAS T. ECKERT, Manager.

‘NORVIN GREEN, President.

+-------------+
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                ¦Number¦Sent by¦Rec'd by¦7 Collect¦Check           ¦
                +------+-------+--------+---------+----------------¦
                ¦      ¦       ¦        ¦         ¦                ¦
                +------+-------+--------+---------+----------------¦
                ¦1     ¦Jm     ¦Fg      ¦         ¦Delivered from  ¦
                +------+-------+--------+---------+----------------¦
                ¦      ¦       ¦        ¦         ¦16 Broad street.¦
                +------+-------+--------+---------+----------------¦
                ¦      ¦       ¦        ¦         ¦                ¦
                +--------------------------------------------------+
                

‘Received at the Western Union building, 195 Broadway, New York, July 31, 1884. Dated Great Neck Depot, L. I., 31. To T. W. Pearsall, Mills building, N. Y.: Buy one thousand Western Union Telegraph. T. W. PEARSALL.’

No person connected with the office of T. W. Pearsall & Co. had authority to open telegrams addressed to the plaintiff individually, and this one remained unopened until about 10 o'clock A. M. of August 1st, when the plaintiff reached his office, opened and read the message. The result was that the shares ordered were not purchased July 31st, and on the morning of August 1st they had risen in the market, so that they sold for $1,700 more than they did on the morning of the day before, and the plaintiff then actually purchased that number of shares, and paid the market rate. This action was brought to recover the sum of $1,700. The defendant, by its amended answer, (subdivision 5,) admits that the message was delivered at its office at Great Neck, L. I., to a son of its agent, and by the letter of its general manager admits that the error in its transmission was that of the operator at Great Neck, but it alleges that at this time, and for a long time previously, the defendant was using a blank upon which messages were usually written, which contained the following printed matter: ‘Form No. 2. The Western Union Telegraph Company. 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; nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz., one per cent. for any distance not exceeding 1,000 miles, and two per cent. for any greater distance. No employe of the company is authorized to vary the foregoing. No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and, if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free-delivery limits of the terminal office; for delivery at a greater distance a special charge will be made to cover the cost of such delivery. 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. THOS. T. ECKERT, General Manager. NORVIN GREEN, President.’ That plaintiff had notice of those terms and conditions. Upon the trial the plaintiff testified: ‘I am familiar with the general appearance of the blanks, with the printed heading, which the Western Union Telegraph Company furnishes to persons whose business it desires; and have been so for a good many years. I have frequently sent messages written on such blanks. Bundles of such papers are lying on the table in my office, ready of access to any one who desires to send a message by telegraph. There is quite a parcel of them there, always in full view. I have been in the habit of taking blanks from that pile, and writing messages on them, and sending them myself; and I had been, previous to the time this message was written on the 31st of July, 1884. * * * Question. Did you ever, in point of fact, before sending this message, read any of this printed matter that is at the head of the blanks in your office? Answer. No, sir. Q. Had you in any way knowledge of the terms of those conditions? A. No, sir.’ On the trial the defendant offered in evidence blank form No. 2, and insisted that the plaintiff was bound by its terms; but the court rejected the offer, and ruled that the terms were not binding on the plaintiff. But two question were submitted to the jury: (1) Whether the defendant was negligent in transmitting the message; (2) the amount of damages. The jury returned a verdict for $1,757.86, upon which a judgment was rendered, which was affirmed by the general term, from which the defendant appeals to this court.

Burton N. Harrison, for appellant.

Thomas G. Shearman, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

This action was tried and a recovery had at circuit, which was sustained at the general term, on the theory that the contract between the parties was the one implied by law when a telegraph company receives, without conditions, a message for transmission. Among other obligations implied in such a case is the duty to accurately transmit and deliver to the addressee the message received, which in this case the defendant failed to do, as it admits, by reason of the mistake of the operator who received and undertook to send forward the communication. Under such a contract a telegraph company does not insure the accurate transmission and delivery of a dispatch, but undertakes to exercise due diligence to do so. The question has several times arisen whether, in actions for damages against such corporation for failing to accurately or promptly deliver communications, a plaintiff makes out a prima facie case by proving the contract and its breach, or whether the plaintiff must go further, and give evidence of some negligent act of omission or commission on the part of the corporation or of its agents. Rittenhouse v. Independent Line of Tel., 1 Daly, 474, 44 N. Y. 263, was brought to recover damages for failing to correctly transmit a message, and it was held that a prima facie case was made out by showing that the communication delivered was not a copy of the one sent. In Baldwin v. Telegraph Co., 45 N. Y. 744, a dispatch was received for ‘Erie Darling,’ but, as transmitted, it was addressed to ‘E. R. Cooley,’ and was not delivered to Darlingfor several days; and it was held that by proof of these facts a prima facie case was established. In Breese v. Telegraph Co., 48 N. Y. 132, it was proved that a message to purchase $700 in gold was changed to one to buy $7,000 in gold; and it was said, though not necessary for the...