135 Mich. 600 | Mich. | 1904
On the 10th oí September, 1900, plaintiff wrote a broker in New York to buy him a car of lemons. On the 12th of the same month plaintiff desired to reduce this order, and so sent by defendant a telegram to buy only 60 boxes. This telegram was delivered in Detroit at a quarter before 8 or a quarter before 9 in the morning. The telegram was sent to the office of defendant by a messenger boy, who gave notice that plaintiff wished the message to be in New York by 11 a. m. The message was sent without delay to Buffalo, but was there
The verdict was rightly directed, unless the plaintiff can maintain one of three contentions: First. It is said that the plaintiff was not bound by the conditions printed upon the back of the telegram sent, as the blank used was a Postal telegraph blank, and the regulations did not purport to be regulations of the defendant company. Second. It is said that there was a special contract to deliver the message in New York at 11 o’clock. Third. It is claimed that there was gross negligence in failing to notify the plaintiff that the wires were down east of Buffalo, so that the plaintiff might have sent his message by a different route. We pursue the order adopted by plaintiff’s counsel •in considering the questions raised.
“ Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.”
It is immaterial by whom these regulations were made. It is clear that they were agreed to. To say that they were' not is in effect to say that no request was made to defendant company to send this telegram at all, because
“It appears that, during the night preceding the morning in question, a severe storm had prevailed throughout New York State, and that, as a consequence of said storm, many wires of the defendant company were interrupted. It does not appear, however, that, at the time the message was received by the operator in Detroit for transmission to New York, the operator had any personal knowledge of the difficulty, unless it can be said that he was chargeable with said knowledge by reason of the fact that, when he attempted it, he was unable to secure immediate through connection with New York City. His testimony is that he did not know of the difficulty east of Buffalo, and that, while he usually sent messages direct to New York, it was nevertheless an ordinary method of transmission that he adopted when he sent the message to Buffalo, to be there repeated to New York. No knowledge that the message was delayed in Buffalo seems to have reached the operator in Detroit, and, in the absence of instructions to repeat the message, it seems to me that the company, through its agent in Buffalo, was not charged with any knowledge of its urgency, such as would make it liable for damages by*604 reason of tbe delay. The case in this regard is almost a parallel one with the case of Birkett v. Telegraph Co., 103 Mich. 361 (61 N. W. 645, 33 L. R. A. 404, 50 Am. St. Rep. 374). In that case our Supreme Court held that the negligence of the operator in Dearborn was not such gross negligence as would entitle the plaintiff to recover, and that the fact that the plaintiff had. not requested the message to be repeated relieved the operator in Detroit from the necessity of notifying the plaintiff of the fact that Dear-born could not be reached by him. The case of Fleischner v. Cable Co., 55 Fed. 738, is authority for the charging of the defendant company with gross negligence where its operator receives a message for transmission, well knowing at the time that its lines are down, and not knowing how long a time will intervene before they will be put in condition, there being at the same time a known method of transmission which was in order.”
The judgment is affirmed.