Alexander v. Western Union Telegraph Co.

| Miss. | Oct 15, 1888

Arnold, C. J.,

delivered the opinion of the court.

These facts are stated substantially, both in the original and the amended declaration — appellee, as a corporation duly chartered, was engaged in the business of receiving and transmitting for hire, telegraphic messages for the public — that its lines extended from Starkville, Miss., to Chattanooga, Tenn. — that appellants desired to purchase a certain lot of land in the latter place, and were informed on the 3d of December, 1886, by letter, from the agent of the owner of the lot, that it could be bought for three thousand dollars, and that if they wanted it at that price, to inform him by wire, on or by the 6th of December, 1886, of their acceptance — that on that day, appellants delivered to the operator of appellee, at Starkville, a message, and paid the price for its transmission, to the agent of the owner of the land at Chattanooga, in these words:

“Starkville, Miss., Dec. 6, 1886.

“ Neil W. Carothers, Attorney-at Law,

“Chattanooga, Tenn.

“ Yours of the 3d received. Get option till Monday, if can, if not, close the trade and fix papers.”

That the message was delivered to the operator at Starkville, about 1 o’clock p. M., on the 6th of December ; that it was the intention of appellants to purchase the lot, and they were prepared to dp so at the price at which it was offered, and that they would have secured it and a good title to the same, if their message had been promptly delivered at Chattanooga — that at the time. the message was delivered to the operator at Starkville, he was informed of appellants’ purpose in sending it, and of the importance of it being sent and delivered promptly — that on account of the negligence of appellee, the message was not delivered at Chattanooga until about 8 o’clock p. m., on Tuesday, the 7th of December, 1886— that it resulted from the delay in the transmission and delivery of the message that the lot was sold to another before receipt of the message on December the 7th, and appellants lost the purchase and bargain and sustained the actual loss and damages claimed — that upon being informed of their failure to obtain the lot and of its purchase by another, appellants promptly endeavored to buy it from the purchaser, but could not get it for less than five thousand dollars— that although the lot was offered at three thousand dollars, it was of the market value of five thousand dollars, and at the time of the institution of the suit it had advanced in value so as to be worth eight or ten thousand dollars.

■ Appellañts claimed as damages, the difference between the price at which the lot was offered to them, and its actual market value, at the time when the message should have been delivered at Chattanooga, and in the original declaration, the statutory penalty of twenty-five dollars allowed by the act of 1886, for the failure to deliver telegraphic messages within reasonable time, was also claimed.

Appellees demurred to the original declaration, and assigned in substance, for special causes of demurrer — that no cause of action •was shown in the declaration — that the damages sued for were not actual and immediate, but remote, contingent, and speculative — that it was not shown that plaintiffs suffered any actual loss by the alleged negligence — that it did not appear that if the message had been promptly delivered, the trade for the land would have been concluded — that the statutory penalty sought to be recovered, in connection with other damages, could not, under the constitution and laws of the United States, be enforced.

The demurrer was sustained and leave given the plaintiffs to amend, and an amended declaration was filed, and to it there was a ■demurrer.

The special causes of demurrer to the amended declaration, were in effect, the same as those to the original, with the additional •causes — that it was not shown that the agent of the owner of the land, had any authority in writing, to sell or contract for the sale of the land, and that the message was not an absolute, but a conditional acceptance of the offer made by the agent of the owner of the land.

The demurrer to the amended declaration was also sustained, and appellants declining to amend further, judgment final was •entered against them, and they appealed, and assign for error the .action of the court in sustaining the demurrers.

In any view of the case, appellants were entitled to recover nominal damages — the amount paid for the transmission of the message —if no more, and for that reason, the demurrers should have been overruled. Parks v. Tel. Co., 13 Cal. 422" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/parks-v-alta-cal-tel-co-5434123?utm_source=webapp" opinion_id="5434123">13 Cal. 422; Daughtry v. Tel. Co., 75 Ala. 168" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/daughtery-v-american-union-telegraph-co-6511836?utm_source=webapp" opinion_id="6511836">75 Ala. 168.

But they should have been overruled on broader grounds. If the facts stated in the declarations, and admitted by the demurrers to be true, do not constitute a good cause of action against the telegraph company, it is difficult to conceive what would. We construe the message to be an acceptance of the lot on the terms at which it had been offered, but whether it was or not, and whether or not it was of itself sufficient to close the trade for the lot, it is alleged in the declarations and admitted by the demurrers, that if the message had been promptly transmitted and delivered, appellants would have obtained the lot, and that by the delay in the delivery of the message, they lost the purchase, and suffered the loss and damages for which they sue. These allegations might have been avoided by facts, but not by demurrer.

In the face of the admitted fact that appellants would have procured the lot and a good title to the same, if their message had been duly delivered, it was entirely immaterial whether Carothers, the alleged agent, had written authority to sell or not. That might have been an important matter in a suit between appellants and the owner of the lot touching the validity of the sale, but if appellants prove what they allege, it would be no defense to the telegraph company, for a violation of its contract.

It is true, that under the decision of the supreme court of the United States, in W. U. Tel. Co. v. Pendleton, 122 U.S. 347" court="SCOTUS" date_filed="1887-05-27" href="https://app.midpage.ai/document/western-union-telegraph-co-v-pendleton-91986?utm_source=webapp" opinion_id="91986">122 U. S. 347, the penalty imposed by our statutes on telegraph companies for failure to deliver messages within a reasonable time, aud which was claimed in the original declaration, cannot be enforced, because the. message was to be delivered beyond the limits of the state; but that was no cause for sustaining the demurrer to the original declaration. The statutory penalty was but part of the amount claimed in a declaration of but one count. The demurrer was to the whole, and not to a part only of the declaration. In such case, the demurrer must be overruled. 1 Chit. Pl. 665.

We do not find that the damages claimed, fall within the category of being too speculative, remote or contingent, to be recoverable. On the contrary, they appear to be the actual damages that resulted directly, and naturally, from the breach of duty and contract upon which the complaint is founded, and they are capable of being ascertained and established, not only with reasonable, but with as near absolute certainty, as any class of damages.

On the admitted facts it requires no expansion of the just rules of law, to hold the telegraph company liable for the damages claimed.

It seems like attempting to cut the throat of common sense and knock the brains out of reason, to maintain the proposition, that a man sustains no loss or injury cognizable by law, when he is offered property for three thousand dollars, worth five thousand in the market, and which he is ready and anxious to buy, but is prevented from doing so, by negligence such as is disclosed in the record, and not denied, or avoided by any excuse or justification.

In Rittenhouse v. Independent Line Tel., 44 N.Y. 263" court="NY" date_filed="1870-12-29" href="https://app.midpage.ai/document/rittenhouse-v--independent-line-of-telegraph-3604913?utm_source=webapp" opinion_id="3604913">44 N. Y. 263, where the ■operator of the telegraph company made a mistake in the article ordered by telegram, it was held that the company must make good the difference between the' price of the article actually ordered, at the time when the dispatch should have been delivered, and the price of the same article, if it had been purchased as soon as the ■mistake was discovered.

In U. S. Tel. Co. v. Wenger, 55 Penn. St. 262, there was a failure by the telegraph company to deliver a message to buy certain stock, which advanced in price between the time when the message should have been delivered, and the time it was purchased under another order. It was held that the company was liable for the amount of the advance in the price of the stock between these dates. •

In W. U. Tel. Co. v. Hyer Bros., 22 Fla. 637" court="Fla." date_filed="1886-06-15" href="https://app.midpage.ai/document/western-union-telegraph-co-v-hyer-bros-4914008?utm_source=webapp" opinion_id="4914008">22 Fla. 637, appellees, ship brokers in Pensacola, having been engaged by a customer to charter a vessel, sent a telegram (to their correspondent in Barbadoes, making an offer for the charter of a vessel. The offer was accepted and a message sent to appellees informing them of the acceptance, but it was not delivered to them by the telegraph company. Their correspondent in Barbadoes, as their agent, signed the usual charter-party for appellees. Not receiving the answer to their message, they told their customers that they had failed to charter the vessel, whereupon he chartered another. Two weeks afterward the vessel came to Pensacola, as required by the charter-party, signed by appellees’ agent in Barbadoes. They were compelled to recharter the vessel at a loss, and it was held, that the telegraph company was responsible to appellees for such loss, and for their time and exertions in re-chartering the vessel.

In Daughtry v. American Union Tel. Co., 75 Ala. 168" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/daughtery-v-american-union-telegraph-co-6511836?utm_source=webapp" opinion_id="6511836">75 Ala. 168, it was decided, that when a telegraph company receives, and for a valuable consideration agrees to transmit and deliver a message, directing the sale of cotton owned by the sender, and without lawful excuse, fails to deliver the message in due time, the sender may recover the actual damages sustained by the fall in the price of the' cotton between the time it wcfuld have been sold, if the message had not been delayed, and the time it was actually sold ; with the qualification however, that so soon as the sender discovered that his message had not been forwarded, it became his duty, within a reasonable time, to repeat the order or direction to sell, or to take other requisite steps to prevent further loss.

In True et al. v. Int. Tel. Co., 60 Me. 9" court="Me." date_filed="1872-07-01" href="https://app.midpage.ai/document/true-v-international-telegraph-co-4932208?utm_source=webapp" opinion_id="4932208">60 Me. 9, plaintiffs having received an offer of a cargo of corn at ninety cents per bushel, delivered to the telegraph company, to be sent to the person making the offer, the following message — “ Ship cargo named at ninety, if you can secure freight at ten.” The message was not delivered by the company, by reason whereof, plaintiffs failed to obtain the corn on the terms offered, and the price of corn and freight immediately advanced, and plaintiffs lost the profits which they might have made thereon. It was announced by the court, that the measure of damages recoverable in the case, was the difference between the price named in the offer, and that which plaintiffs would have been obliged to pay at the same place, in order by due diligence after notice of failure to deliver their telegram, to purchase, the like quality and quantity of corn, with the same rule in relation to the freight.

In W. U. Tel. Co. v. Fatman, 73 Ga. 285" court="Ga." date_filed="1885-01-06" href="https://app.midpage.ai/document/western-union-telegraph-co-v-fatman-5561420?utm_source=webapp" opinion_id="5561420">73 Ga. 285, a ship broker desired to furnish a vessel for the use of another person, and if he had done so, he would have been entitled to certain commissions for his services. He dispatched to Liverpool for a vessel, and a message requiring immediate reply and offering a suitable vessel, was delivered to a telegraph company to be communicated to the broker, but the company failed to deliver it to him within a reasonable time, and on that account the vessel was not obtained. The broker sued the telegraph company and recovered judgment for the amount of the commissions he would have earned, if the message had been promptly delivered, and the vessel had been secured, and the judgment was affirmed by the supreme court of Georgia.

In Parks v. A. & C. Tel. Co., 13 Cal. 422, Parks delivered a dispatch to the telegraph company, authorizing bis agent to secure a debt due him from a third party, by attachment. By the negligence of the company in transmitting the message, -other creditors obtained the first attachments, and seized the whole of the property of the debtor. Bhe court considered that the question of damages was one of fact, and found no difficulty in the case as far as ascertaining the amount of damages or the cause of them was concerned, and held that Parks was entitled to recover from the telegraph company the amount of his debt, if he could show that it was lost in consequence of the negligence of the company.-

These cases, and others to the same effect, which might be cited, impose no new or unusual burdens on telegraph companies. They simply apply old principles to new conditions. Such companies undertake to serve, and are under obligation to serve, the public generally — all who choose to employ them. Their occupation is one of a public nature. The rapidity and accuracy with which they communicate intelligence, commend them to popular favor and confidence. Much of the business and of the most important affairs of life are affected and controlled by telegraph companies. Negligence and unreasonable delay in their operations would impair their usefulness and render them a source of danger, rather than of advantage to the public, if the law afforded no remedy. The law requires that their contracts shall be performed in good faith, and that their functions shall be discharged with reasonable care, and that they shall answer in damages for losses and injuries that may be traced directly, or with reasonable certainty, to their negligence.

Judgment reversed, demurrers overruled, and cause remanded,.'