170 Mo. App. 642 | Mo. Ct. App. | 1913
In this case plaintiffs sue for damages said to have been caused by the alleged failure of defendant to promptly transmit and deliver a telegram sent from Kirksville to St. Louis on July 26, 1910. The proof showed (and no controversy is made over it) that the message was delivered to the operator in defendant’s office at Kirksville at 1:40 p. m.; that the usual charge for transmission was paid; that the time required to transmit and deliver a message from Kirksville to any point within the free delivery limits of St. Louis, in which limits the addressee of the mes
It seems that plaintiffs had ordered J. M. Patterson of St. Louis to ship them a carload of peaches from St. Louis to Milan, Missouri, over the Burlington railroad. But after the order had been given, plaintiffs, thinking a better market for them could be had at Macon, concluded to have the peaches, shipped to that town instead of Milan, and to have them shipped over the Wabash instead of the Burlington. It was for the purpose of changing the route and destination of this car of peaches that the telegram was sent.
Had the message been received by the addressee at any time prior to four o ’clock p. m., July 26th, it would have enabled him to bill the car over the Wabash to Macon as directed. Owing to the delay in delivery, however, the car, when the contents of the message were telephoned to the addressee, had already been started’ on its way to Milan over the Burlington. The recipient of the telegram immediately upon learning its contents succeeded in having the car en route ordered dropped at Macon as it would have to go through Macon on its way to Milan. Had the car been sent over the Wabash as directed in the telegram, it would have arried in Macon between three and four o’clock of the morning of July 27, but as it came over the Burlington it did not arrive until ten minutes to nine of that morning.
The evidence discloses that peaches when ripe for shipment become overripe very quickly in hot weather; that they become unfit for market if not in firm and
Not knowing that there bad been a delay in tbe delivery of tbe telegram, plaintiffs went from Kirks-ville to Macon at midnight of tbe morning of the 27th to be there in time to receive tbe peaches over tbe Wabash at four o ’clock and thus get them on the early market of that day. Upon inquiry at the Wabash depot, plaintiffs learned from the agent that the St. Louis train had come but no peaches, and that no opportunity for them to come would arise until next morning. Thereupon they went to the Burlington depot and inquired for the peaches and was told by the agent they were not there, and that the train they would likely come on, if on that road at all, was already in. Plaintiffs then returned to Kirksville on the passenger train leaving Macon at 8:45 a. m. 'As soon as they reached their place of business in Kirks-ville, they were informed by the Burlington agent at Macon, over the, telephone, that the peaches had arrived. They immediately returned to Macon on the next train arriving there about one o’clock p. m. of the 27th. They examined the peaches and found them in fair condition. They already had from 100 to 200 bushels sold on condition that they were firm and not overripe. But by this time it was too late to put them on the market for that day, the merchants refusing to take them for the reason that housewives would not buy in the afternoon, and there was no market nor them except in the early morning. Consequently they were compelled to wait until the morning of the next day before disposing of them. By- this time they were overripe, some of them decayed, by reason of which
The suit is in tort for failure to deliver a message with the exercise of care and reasonable dispatch. When such failure has been affirmatively established and there is loss sustained as the direct and proximate consequences of its wrong, the defendant is liable. [Fitch v. Telegraph Co., 150 Mo. App. 149; Reed v. Western Union Tel. Co., 135 Mo. 661; McCarty v. Western Union Tel, Co., 116 Mo. App. 441.]
It is first insisted that there is nothing in the testimony to show whether plaintiffs lost anything or not, and for this reason no recovery can be had. The grounds of this objection are that plaintiffs were not able to state precisely what they got for the peaches, nor the exact amount paid for freight, and that as the damages are for loss of profits they are too remote, contingent and speculative. It is true plaintiffs were unable to state from memory whether the freight was $100 or $200. But it was in evidence that there were 408 bushels of peaches in the car, that each bushel, crate and all, weighed sixty pounds and that the rate from St. Louis to Macon was thirty cents per hundred with $45 charges for refrigeration. From this it was only a matter of arithmetic to determine the amount of freight paid. The peaches in their overripe condition brought $436 and had cost plaintiffs, freight included, $526.44 making a dead loss of $90.44 on the purchase. In addition to this it was shown that had •the peaches been in good condition when placed on the market they would have sold for seventy-five cents per bushel more than was paid for them, which with the loss on the purchase price would aggregate something near $280. So that the court’s judgment for $200 was not unreasonable. The market price for peaches in good condition was shown, the plaintiff had advance
It is true plaintiff cannot recover unless the evidence shows that the failure to deliver the message was the proximate cause of the loss. But that question was submitted to the court sitting as a jury and it found for plaintiffs. The evidence is not only sufficient to sustain this finding but there is hardly any to the contrary. The message was sent at 1:40 and could have been delivered by 2:15. It was not delivered till 7:30 that night. If it had been delivered at any time before four o’clock the car would have come over the Wabash and would have arrived in Macon between three and four the next morning in ample time for the peaches to go on the market of that day. The peaches were in good condition when they arrived but deteriorated during the enforced delay. It was proved by experienced fruit men who had dealt in peaches for several years that they are very perishable and must be handled quickly, and that in hot weather a very
It is urged that before plaintiffs are entitled to recover, the damages must be such as may be fairly and reasonably considered as arising naturally out of the transaction. This means that, as the telegraph company could not know from the message that perishable fruit like peaches was the subject of the dispatch, they could not have had in contemplation loss by reason of delay in receiving the car. It is true that where the action is for breach of the contract the damages must be such as rise naturally out of the breach and be such as may be reasonably within the contemplation of the parties. But where, as here, the action is in tort, or for a breach of defendant’s public duty, the damages recoverable are such as might reasonably have been expected to occur under the particular circumstances. [Jones on Telegraph Companies, sec. 518.] And while there may appear to be little if any difference in these two rules yet there is some difference and it seems to be this: That in the latter class of cases the company-need not have the same information of the nature of the message and the probable result which would arise on a failure to properly transmit or deliver it as it would in an action on the contract. In .other words, in actions in tort, “the injured party is not limited to damages which might reasonably have been within the contemplation of the parties, but recovery may be had for all the injurious results which flow therefrom by ordinary natural sequence without the interposition of any other negligent or overpowering force.” [Jones on Telegraph Companies, sec. 518; Mentzer v. Telegraph Co., 93 Iowa, 752, l. c. 760; Western Union Tel. Co. v. Dubois, 128 Ill. 248, l. c. 255.] It is said that, even in this class of
Lastly it is urged that plaintiffs should have made arrangements with some one to have received the frnit on arrival and thereby decreased the loss to a minimum. But this assumes that they knew the telegram had been negligently delayed. This they did not know. They had a right to assume that the message had been promptly delivered. They inquired at all the depots and had investigation made along the "Wabash to ascertain, if possible, where the car was. They were not negligent in thinking the car had not been shipped. Nor did they fail to take every precaution a reasonably prudent business man would take to «reduce the loss as much as possible. As soon as they could they got to the peaches and did all in their power to sell them at once, to sort the bad from the good when they began to soften, and to obtain the largest possible amount for them. It is said that they failed to inquire at the Burlington depot whether any other later train could bring them. But they were told that the train most'likely to bring them was already in, and there was no reason to expect them on the Burlington if the message was properly delivered. From what has been said we think the learned trial judge held correctly in the case, and the judgment is, therefore, affirmed.