#### The Empire Roller Rink Company, Plaintiff, *v.*The Western Union Telegraph Company, Defendant.

(Supreme Court, Erie Equity Term,

February, 1912.)

Telegraph and telephone companies — Duty to serve public — Liability for failure to transmit telegrams or for delay or errors in transmission.

Where - from a prepaid message reading: “Telegram and letter just received. Don’t want Alhambra April twenty-six. Letter follows,” the word “ don’t’’ was missing on delivery of the message, the telegraph company in the absence of explanation is chargeable with gross negligence and' is not. exempt from liability therefor by the restrictions and conditions printed on its blanks.

Motion by defendant to set aside a verdict directed by the court.

Hugh Rourke, for motion.

E. C. Randall, opposed. •

Brown, J.

April 12, 1906, there was delivered to the defendant, at Tuskegee, Ala., a written, prepaid message for transmission to; Syracuse, H. Y., 'in words and figures as follows:

*“*Tuskegee, Ala.; *April*12, 1906.

“ To Mr. J. A. Brown, Alhambra Rink, Syracuse, H. Y. Telegram and letter just received. Don’t want Alhambra April twenty-six. Letter follows.

*“*Robert W. Taylor.”

*568On the same day the defendant, at Syracuse, U. Y., delivered to J. A. Brown the said message, reading:

“ Received at 133 South Salina St. (Cor. R. R. St.), Syracuse. 452 am y J w u. 13 pd. 404 p. Tuskegee Ala. Api 12. 00. Mr. J. A. Brown Alhambra Rink, Syracuse E. Y. Telegram and letter just reed want Alhambra April twenty six letter follows:

“ Robt. W. Taylor.”

The result of the "omission of the word “don’t” from the delivered message was $150 damage to the plaintiff. The verdict was directed upon the theory that such omission was gross negligence oh the part of the defendant. Both parties having moved for a direction of a verdict, the question of fact was determined as stated. The correctness of such 'decision is challenged by the motion. •

It appeared from the face of the message .as delivered that the sender had sent and paid for a message containing thirteen words; the message as” delivered contained only twelve words. The defendant before delivering the message had actual notice that one word had been omitted or lost in transmission. It was then called upon to take proper steps to ascertain the correctness of the message it was about to deliver. The missing word is a most important one, entirely changing the message from an affirmative statement that Taylor did not want the Alhambra Rink on the twenty-sixth of April to one that he did want it on that date. With no explanation whatever as to why the essential word was omitted, there can be no escape from the conclusion that its omission was either intentional or the result of a total want of. any care at all. The slightest care on the part of the defendant would have discovered that some word was missing. RTo other conclusion could have been reached than that the negligence of the defendant was gross; from the liability for which it is not permitted to exempt itself by restrictions and conditions printed upon its sending and receiving blanks. Weld v. Postal Telegraph-Cable Co., 199 N. Y. 98; Pearsall v. Western Union Telegraph Co., 124 id. 265; Dixon v. Western Union Telegraph Co., 3 App. Div. 61.

*569It could have been reasonably anticipated by the defendant that injury would- be occasioned the occupants of the Alhambra Rink, as the probable consequence of such negligence. From the telegrams quoted and the one sent by Brown to Taylor on the 4th of April, 1906, it clearly appears that Brown was not an undisclosed principal of the plaintiff; and it does appear that the plaintiff was the beneficiary of these messages.

Motion denied.