| Mass. | Sep 3, 1884
The evidence was sufficient to justify the auditor and the presiding justice of the Superior Court in finding that the contract with the defendant, made by the plain* tiff through his agent Moulton, was subject to the conditions and stipulations contained in the form issued by the defendant.
One of these stipulations is as follows: “ 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.”
It has been held in this Commonwealth, that a regulation or stipulation of this character is reasonable and binding upon the parties to it. Grinnell v. Western Union Telegraph, 113 Mass. 299" court="Mass." date_filed="1873-10-15" href="https://app.midpage.ai/document/grinnell-v-western-union-telegraph-co-6417411?utm_source=webapp" opinion_id="6417411">113 Mass. 299, and cases cited. In the case at bar, the plaintiff did not repeat his message, and it follows that, under the contract which he made, he can recover only twenty-five cents, the cost of the message.
The plaintiff contends that, as the auditor has found that the defendant by its agents was guilty of gross negligence in not delivering the message seasonably, this stipulation does not exempt the defendant from liability for the damages actually sustained.
The only negligence shown in this case was an unexplained delay in delivering the message on the part of the messenger boy, to whom it was, after its receipt, entrusted for delivery. It may be that the- company might be guilty of some fraudulent or gross negligence in transmitting or delivering a message, so that it would not be protected by its regulation from liability for the actual damages, though in excess of the sum stipulated. But the negligence of the messenger boys in delivering messages was plainly contemplated by the parties when they entered into
Without discussing the question as to what is the difference, if any, between ordinary and gross negligence, we are of opinion that the only negligence proved in this case was such negligence as the parties intended to include in their stipulation; and that such stipulation, as applied to such negligence, is reasonable and valid. It follows that the Superior Court rightly ruled and found that the plaintiff was entitled to recover only twenty-five cents. Exceptions overruled.