| Mo. Ct. App. | Jan 16, 1906

BLAND, P. J.

(after stating the facts). — 1. Section 1259, B. S. 1899, provides: “Every telephone or telegraph company now organized, or which may hereafter be organized under the laws of this State, shall be liable for -special damages occasioned by the failure or neglect of their.operators or servants in receiving, copying, transmitting or delivering dispatches,” etc. It is not shown *446whether or not the defendant was incorporated under the laws of this State, and it is contended by defendant that this section applies only to telephone and telegraph companies organized under the laws of this State. The section so reads, and it is not clear that we have any statute subjecting foreign corporations doing business in this State to the same restrictions, liabilities and duties, which are by law imposed on corporations of like character, organized under the laws of this State. Section 1024, B. S. 1899,’ subjected foreign telephone and telegraph companies doing business in this State to the provisions of section 1259 supra, but the section was repealed by the Legislature in 1903, and a new section enacted in its stead which fails to contain any clause or proviso subjecting foreign telephone and telegraph companies doing business in this State to' the provisions of section 1259. But, independent of any statute, the defendant is liable at common law for such damages as are fairly and substantially caused by the negligence of its servants in the transmission of messages. [Hughes v. W. U. Tel. Co., 79 Mo. App. 133" court="Mo. Ct. App." date_filed="1899-02-21" href="https://app.midpage.ai/document/hughes-v-western-union-telegraph-co-8262136?utm_source=webapp" opinion_id="8262136">79 Mo. App. 133; Smith v. W. U. Tel. Co., 57 Mo. App. 259" court="Mo. Ct. App." date_filed="1894-03-26" href="https://app.midpage.ai/document/smith-v-western-union-telegraph-co-6617663?utm_source=webapp" opinion_id="6617663">57 Mo. App. 259; Fererro v. W. U. Tel. Co., 35 L. R. A. 548.]

Where the message shows on its face, as did the one delivered by Pendleton to the defendant, that a business transaction is contemplated and that negligence in its transmission may reasonably be attended with loss, the plaintiff is entitled to recover all damages which result to him by reason of defendant delivering to him a spurious telegram, on the principle that in actions ex delicto the plaintiff is entitled to recover such damages as naturally flow from defendant’s negligence. In other words, the plaintiff has a right to be placed in the same position he would have been in had-defendant’s agents correctly transmitted the telegram. Had this been done, the mules would not have been delivered to Pendleton, and the presumption is that plaintiffs would have been able to have sold the mules at what the evidence shows was their market value at Clarence, one hundred and thirty-five *447dollars per head. Their loss or damage, therefore, was five dollars on each mnle. But it is contended by defendant that the plaintiffs were negligent in delivering the mules to Pendleton without first having from him a verbal acceptance of their offer of-the mules at one hundred and thirty-five dollars per head. We cannot agree to this contention. Plaintiffs offered to sell the mules to Pendleton on his first visit for one hundred and thirty-five dollars per head. No other price was named or discussed, and Pendleton went away saying he would wire plaintiffs from St. Louis. The spurious telegram informed plaintiffs that he had concluded to accept their offer and would leave at one-thirty for the mules, therefore, there was no occasion for further discussion or negotiations. Plaintiffs made an offer and, according to the spurious telegram, Pendleton accepted it and nothing remained to be done to close the trade but to deliver the mules and receive the pay. Payment was postponed until after the mules were shipped and mostly sold by Pendleton, too late to recall the mules or correct the mistake caused by the negligence of defendant in transmitting the telegram. This mistake caused the damages which plaintiffs recovered, and there being no reversible error in the record, the judgment is affirmed.

All concur.