51 Mo. App. 375 | Mo. Ct. App. | 1892
This was an action for damages by the recipient of a telegraphic message transmitted over the defendant’s lines, for a mistake in its transmission whereby he was put to damage. On trial anew in the circuit court before the judge sitting as 'a jury, a finding and judgment were .rendered in favor of the plaintiff in the sum of $47.95, from which the defendant prosecutes this appeal, assigning the following errors: First. That the court erred in admitting the testimony of the plaintiff with respect to the amount of his traveling expenses, and the value of the time lost by him in consequence of the erro.r in the message, as such damages were not pleaded. Second. That the court erred in admitting in evidence the testimony of the plaintiff as to the value of the time lost by him in making the trip, and in sustaining the plaintiff’s objection to that portion of his answer to a cross-interrogatory respecting the receipt, of his salary during the time consumed ;in making the trip, and in awarding damages for the loss of his time, when the testimony showed that his visit was solely upon his employer’s business, and that his employer had paid him for the time consumed. Third. That the court erred in giving judgment for the ¡plaintiff; since under his own testimony the damages by him sustained, if any, did not arise directly from any negligence by him complained of. Fowrth. That under the plaintiff’s own testimony the right of action, if any, is in his employer. Fifth. That the defendant’s motion in arrest of judgment should have
I. The first and fifth of these assignments of error relate to the sufficiency of the statement of the cause of action filed before the justice of the peace to authorize an award of special damages; and we shall get these two" assignments out of the way before proceeding to the others.
The language of the complaint is as follows: ‘'Plaintiff states that defendant is a corporation doing a general telegraph business in this state. That, on the twenty-fourth day of June, 1891, defendant delivered to plaintiff at Eacine, Wisconsin, a telegram, which defendant had negligently and carelessly transmitted, and had negligently and carelessly altered and changed the meaning thereof from that delivered to it in St. Louis, Missouri, for transmittal to the plaintiff, causing plaintiff to make an unnecessary and useless trip from said Racine to St. Louis, Missouri, and return, to his damage in the sum of $100, for which he prays judgment.” This statement is sufficient to bar another cause of action for the same subject-matter, and does not, as argued, bring the case within the decision of this court in Rosenburg v. Boyd, 14 Mo. App. 429; for, although it does not state the language of the telegram, nor point out wherein the mistake consisted, yet as it is not claimed that any other telegram was delivered by the defendant to the plaintiff on the twenty-fourth of June, the day named in the statement, it must be held that the statement sufficiently identifies the telegram, and the act of negligence of the defendant to bar another action for the same cause without the aid of parol evidence.'
II. We shall next dispose of the assignment that, upon the plaintiff’s own testimony, the right of action, if any, was in his employer. There was no dispute at the trial of the facts in any particular. The evidence upon which the court made its finding consisted of the deposition of the plaintiff, and also of an agreed statement of the facts. This evidence showed that the
III. We shall next get out of the way the assignment of error, that the court erred in giving judgment for the plaintiff for the reason that under his testimony the damages by him sustained, if any, did not arise from any negligence by him complained of. We shall deal with this subject only so far as it relates to the damages proved by him, consisting of the railway fares and other traveling expenses which he incurred in making the trip from St. Louis to Racine and back, being of opinion, for reasons hereinafter to be stated, that he cannot recover anything for the loss of his time, or for the loss of earnings. That the damages sustained by him, amounting according to his testimony to $23.95, which consisted of the expenses made by him in consequence of his trip, were damages recoverable of the defendant as proceeding directly and proximately from its error in delivering the message to him, clearly appears upon principle and authority. The rule applicable to such a case clearly is that, where the message was on its face designed to prevent certain contemplated action, or the company was, from the terms of the message or otherwise, formally apprised that such was its purpose, and yet, in consequence of the failure of the company to transmit it correctly, or to deliver it within a reasonable time, such contemplated action was not prevented, the company will be liable for the resulting damages. This is clearly illustrated by a case finally determined by the court of appeals of New York, where the plaintiff intrusted to the defendant, a telegraph company at the City of New York, for transmission by telegraph, a message directed to his attorney at Buffalo as follows: “Hold my case till Tuesday or Thursday. Please reply.” The plain
IY. We shall lastly consider the second assignment of error made by the defendant, as already recited. In stating in his deposition the damage to which he was put in consequence of the mistake in the-telegram, the plaintiff includes this item: “Time lost,, four p. m., Thursday, to noon, Saturday, say $24.”’ This statement in the deposition was objected to by the defendant as incompetent and irrelevant, but the* court overruled the objection, and the defendant; excepted. Touching this matter the following cross-interrogatory was put to the plaintiff: “State your occupation, and, if in your answer you say you were an officér of a corporation, give the name of the corporation (and state whether or not you have received your salary or pay for the day and a half mentioned in your petition, for the loss of which day and a half you claim $24).” So much of the question as is included in the parentheses was objected to by the plaintiff as
With the exception of the principle declared in Bradburn v. Railroad, supra, that the party liable to pay damages cannot avail himself of a collateral policy of insurance which the plaintiff has bought and paid for, we are not prepared to say that any of the foregoing decisions express the law of this state. Where •compensatory damages only are given, the recovery must be confined to the actual damages sustained. Hannibal
We are, therefore, of opinion that the court erred in the rulings on the evidence above stated, and in including this item of $24 in its award of damages. But it will not be necessary to reverse the judgment for this error, because it can clearly be cured by a remittitur. If the plaintiff will, within ten days from the filing of this opinion, remit from the judgment the sum of $24, it will be affirmed as to the residue; otherwise it will be reversed and the causé remanded. It is so ordered.