119 Wis. 146 | Wis. | 1903
Upon what precise ground the trial court decided this case does not appear. Counsel for the respective parties may have agreed in the presentation of the cause there, as they did here, that the action was for breach of contract, and the decision have been rendered upon the authority of cases holding that the addressee of a telegram, the sender not being his agent nor making a contract for his benefit, must sue for breach of duty constituting actionable negligence or not at all. There is much authority to that effect. Western U. Tel. Co. v. Dubois, 128 Ill. 248, 21 N. E. 4; McPeek v. W. U. Tel. Co. 107 Iowa, 356, 78 N. W. 63; Webbe v. W. D. Tel. Co. 169 Ill. 610, 48 N. E. 670; Curtin v. W. U. Tel. Co. 13 App. Div. 253, 42 N. Y. Supp. 1109; 25 Am. & Eng. Ency. of Law, 826. Whether it voices the law correctly need not be decided. That will be an important and interesting ■question for discussion and decision in the event of a cause coming here depending upon its solution. The trial court may have decided the cause wholly upon the ground that the damages claimed were not the proximate result of respondent’s breach of duty, since there was neither a contract consummated nor even an advance upon one side in the nature of an offer which hy seasonable acceptance would have made ■a contract, but merely the late delivery of a message rejecting
The idea advanced on behalf of appellants is that, had they known Johnson’s attitude in time, they would have submitted thereto and he would have sold them the tobacco, hence that their failure to obtain the property was occasioned by respondent’s breach of duty within the meaning of our statute; It is argued that the legislature, in providing that, “Any person, association or corporation operating or owning any telegraph . . . line doing business in this state shall be liable for all damages occasioned by the failure or negligence of their operators, servants or employees in receiving, copying, transmitting or delivering of dispatches or messages” (sec. 1778, Stats. 1898), intended to render the element off proximate relation, in the common-law sense, of the damages to the injury complained of, in a case like this, unnecessary. We are unable to subscribe to that view. Such a radical change in the legal relation of parties as that would mean could not properly be read out of a legislative enactment without the language thereof being plain and unmistakable. There are many laws respecting liability for breach of duty on the part of persons and corporations performing gwasi-public services, where language similar to that in question is used, the word “occasioned” or some similar word being in place as here, in respect to which it has been held that such word refers to “occasioned” in a legal sense only, not extending beyond the settled rules as to proximate relation of damages to the injury in the law of negligence, requisite to render the same recoverable. The statute requiring the fencing of railroads, as it existed when Curry v. C. & N. W. R. Co. 43 Wis. 665, was decided, made every railway corporation liable for breach of duty thereunder for all damages “occasioned thereby.” Nevertheless it was held that the statute did not create a rule of absolute liability; that the word “occasioned” was used with reference to settled rules of legal responsibility
In view of the foregoing it seems quite clear that, under the statute, damages are recoverable — even where the action is for breach of contract, and will lie in that form only, — not within the contemplation of the parties, when their relations were formed, as the probable result of a breach thereof; that is, that the familiar doctrine of Hadley v. Baxendale, 9 Exch. 341, often approved by this court (Cockburn v. Ashland L. Co. 54 Wis. 619, 12 N. W. 49; Guetzkow Brothers Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119), and controlling ordinarily in actions for damages for breach of con tract, does not apply regardless of the form of the action; that it has been displaced by the statute. In that light, Hibbard v. W. U. Tel. Co. 33 Wis. 558, Candee v. W. U. Tel. Co. 34 Wis. 471, and similar cases, do not apply.
The full scope of the statute has not been defined by any previous decision of this court. The subject was touched upon in Cutts v. W. U. Tel. Co. 71 Wis. 46, 36 N. W. 627. It was there inferentially held, at least, that a telegraph' company is liable in case of breach of duty in respect to deliver
“We cannot regard the statute as creating, or intended to create, in any way, new elements of damage. . . . Had a radical change in the law relating to the kinds of suffering which should furnish a ground for damages been contemplated, the act would have expressed that intention in some unmistakable way. We see nothing in the law to indicate such intention.”
The point involved there was whether loss attributable to injured feelings, only, was recoverable. The decision was .based upon the doctrine that all injuries causing measurable damages having some proximate relation to the injury can be recovered; that in the absence of any physical injury, by common law rules, there is no such proximate relation and that the legislature did not intend by the statute to displace that doctrine. We see no reason for departing from that view. Where there is a proximate relation in a common law sense between an injury caused by a failure of duty on the part of a telegraph company in' the cases mentioned in the statute, and the injurious results, if there be such, the party damaged is entitled to recover compensation for such' results under the statute, whether the form of action be on contract or for breach of duty constituting actionable negligence.
The learned counsel for respondent in the course of their argument fell into some confusion by mixing, so to speak, the rule of Hadley v. Baxendale with the doctrine of proximate cause in the law of negligence, and such' doctrine with' that of proximate relation between an injury and the results in a negligence action necessary to render the same subjects for compensation. The one is quite different from
Applying the foregoing to the facts of this case, can it be ■said that the failure of appellants to purchase Johnson’s tobacco was directly caused by respondent’s failure to seasonably deliver to appellants Johnson’s telegram and that such •event came about as a natural, ordinary result of respond•ent’s conduct, by ordinary, natural, unbroken causation? It seems that such proposition must be resolved in favor of re
The authorities cited by appellants’ counsel come far short of supporting the contention that the damages sought to be-recovered here are the proximate result of respondent’s negligence, In Thompson v. W. U. Tel. Co. 64 Wis. 531, 25 N. W. 789, there was a sale of property subject to delivery thereof in time to enable the purchaser to load the same for shipment by rail. By negligence ,of the telegraph company in transmitting and delivering a message the property did not reach the prospective purchaser in time for him to consummate the trade. The difference between such a situation and. the one before us is so obvious that we need not stop to point it out. In Western U. Tel. Co. v. Wilhelm, 48 Reb. 910, 67 N. W. 870, the terms of an exchange of property were agreed upon, but by breach of duty on the part of the telegraph company in transmitting a dispatch calling for the presence of' one of the interested parties with an abstract, the agreement
Here the delayed dispatch was an adverse termination of a negotiation by which plaintiffs sought to obtain Johnson’s tobacco. There was no suggestion in it for a continuance of negotiations. H othing was to be effected by the delayed dispatch beneficial to appellants. It can easily be seen that the case of appellants is not within the principle of any of the cases cited. A review of the rest of the authorities relied on
By the Court. — The judgment is affirmed.