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Monsees v. Western Union Telegraph Co.

127 A.D. 289 Court Second Department, Decision date 1908-06-12 English

Delivered by Rich, J.:

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p. 289
Henry J. Monsees, Respondent, v. The Western Union Telegraph Company, Appellant.
Second Department,
June 12, 1908.

Headnote

Carrier—unrepeated telegram—negligence.
An action by one receiving a telegraph message will not lie against the company for an amount in excess of the sum charged for the service when the message was unrepeated and was written by the sender upon, the general blank of the company, exempting it from liability for mistakes or delays in transmission or delivery of unrepeated messages, where the alleged negligence causing delay in delivery consisted in changing the address from H. J. Monsees to H. J. Monse.
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 Westchester on the 18th day of January, 1908, upon the verdict of a jury, rendered by direction of the- court after a trial at the Westchester Trial Term, 'and also from an order entered in said clerk’s office on the 29th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.
Francis Raymond Stark [George H. Fearons and Rush Taggart with him on the brief], for the appellant.
Arthur L. Fullman, for the respondent.

The question presented by this appeal has been decided in Halsted v. Postal Telegraph-Cable Co. ( 120 App. Div. 433 ). A tele

p. 290
gram was sent to plaintiff from Brooklyn by Provost Brothers Company, his brokers, on August 5, 1903, requiring an additional margin of $2,000,. and giving notice that if the same was not sent immediately the stock purchased for him would be sold to protect the senders. It was an unrepeated message written upon the general blank of the company, containing the, same stipulations and conditions that were contained in the telegram considered in the Hoisted case, and was Written at the office of the senders by their acting cashier. When delivered to the defendant for transmission-it was addressed to “H. J. Monsees, Unger Cliff Hotel, Mt. Kisco, New York.” It reáched Mount Kisco addressed to “ IH. J. Monse, Unger Cliff Hotel,” and was not-delivered, to plaintiff until August seventh, when he went to the office of the defendant and called for the telegram, which- was delivered to him. His stock Was sold by his brokers on August sixth, resulting in an alleged loss to plaintiff, of his entire' margins amounting to $4,300, $450 of which he has recovered -in this action. . The negligence -alleged in the complaint' is the improper traUsmissioti aüd the' delay in delivering the message,

The principle decided in Halsted v. Postal Telegraph-Cable Co. (supra), is applicable to non-delivery, or delay- in delivery, as well as to an error in language in transmission. It has been followed by this court in Bates v. Weir ( 121 App. Div. 275 ), and by the Appellate Term in Addoms v. Weir ( 56 Misc. Rep. 487 ), and is in accord with the views of the Court of Appeals as expressed in Kiley v. Western Union Telegraph Co. ( 109 N. Y. 231 ).

. The judgment arid order must be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks and Hooker, JJ., concurred; Miller, J., concurred in result, being of the opinion that the contract would not relieve from liability for non-delivery or delay in delivery, unless such non-delivery or delay were caused by an error in transmission. ' . "

Judgment and order reversed and new trial granted, costs to abide the event.

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