110 Ky. 907 | Ky. Ct. App. | 1901
Lead Opinion
Opinion of the court by
Reversing.
This suit was instituted by the 'appellees, who were plaintiffs- in the court below, against -appellants, who own and operate a telegraph line, to reeoyer dam-agesi for their failure to correctly transmit and deliver - a certain telegram to- N. Bernstein & Co., of Cleveland, Ohio. The facts necessary to a correct understanding of the case are as- follows: On the 23d day of August, 1897, John Schaefer & Sons, wholesale produce and fruit merchants at Louisville, Ky., delivered to the defendant, for transmission to N. Bernstein & Co.,' produce brokers in Cleveland, Ohio, this telegram: “Bulk potatoes one seventy barrel. Can ship two cars nice stock to-day. Wire quick.” The message was written out upon one of defendant’s printed blanks. On the same day they 'received from Bernstein & Go., 'Over the Western Union Telegraph line, "the following response to their message: “Telegram received. Ship two oars, your price.” And in response to this telegram appellees shipped two ears of bulk potatoes, .amounting to 340 barrels, at the same time advising Bernstein & Co. of the shipment by ia telegram which reads ais follows: “Ship ciar® L. & N., 15,231 and 15,483 potatoes via Big 4.” And on the same day they mailed invoice -with bill of lading attached to a draft for $589, or the price of 340 barrels of potatoes at $1.70 per barrel. On the 25th day .of August, appellees received from Bernstein & Co., a telegram which reads, viz.: “Bill received 2 oars potatoes one
I't is complained that the court enred in its instruction as to the measure of damage, ,and also that the verdict is flagrantly against the weight of evidence. The instruction complained of is as follows, viz.: “The court instructs the jury that if they shall believe friom the evidence that, by the negligence of the defendant or its agent, the telegram mentioned in the petition, sent by the plaintiffs to N. Bernstein, was changed so as to read $1.07, instead of $1.70, per barrel for the potatoes in controversy, when the said telegram was received by the said Bernstein & Co., and that plaintiffs were thereby damaged, then they should find for the plaintiffs in such a sum as they .believe, from ■the evidence, represented the difference between potatoes at $1.70 per .barrel and the sum for which the plaintiffs oould have sold them at Cleveland, Ohio, after definitely learning of the mistake in the telegram by the exercise of ordinary care and diligence, if there was such mistake. If they find for the plaintiffs, they may, in their discretion,
It is the contention of appellees that appellant was their agent in sending the telegram to Bernstein & Co., and that the delivery of the erroneous message created and gave rise to a valid and enforceable contract on their part to deliver the' potatoes to the sendee at the price named, and this view seems to have been taken by the Ohio magistrate, who presided in the trial of -the suit instituted by Bernstein & Co. against plaintiff; but, in ¡our opinion, this view of the law is an erroneous one, and is in conflict with the great weight of authority both in England and in this country. Cray, in his treatise on Communications by Telegram (page 189), says: “A telegraph company may perhaps be called a ‘special agent,’ since it is employed to do a particular act, namely,, to communicate a certain message. If so, the employer is responsible on the message a¡s delivered only where that message is the one which he authorized the company to communicate, as distinguished from a certain message.”
There is no dispute as to the facts in the matter. The-real question to be settled is the measure of damages in. the case. Under the facts of this -case, the court -should have instructed the jury that, if they believed from the-evidence that the defendant or its agent had negligently-committed an error in transmitting the message from ■Schaefer & Sons to Bernstein & Co., they should find for plaintiff the actual damage to plaintiffs directly attributable to such error, and that -the criterion for determining-the amount -of such damage was the difference between potatoes at $1.70 -per barrel and the sum for which they could have been 'sold in Cleveland, Ohio, by the plaintiffs, after definitely learning of the mistake in the telegram by the xemcise of ordinary care .and diligence,- — not exceeding, however, 63 cents 'on the barrel.
The defense relied -oin in the ¡answer which is predicated upon the terms of the -special contract contained in the printed blanks of the company was fully considered and. decided in the case of Telegraph Co. v. Eubanks, 100 Ky., 591 (18 R., 995) (38 S. W., 1068) (36 L. R. A., 711). It was there held that, under the provisions of section 199 of the Kentucky Constitution, telegraph companies were to be treated as-
Dissenting Opinion
dissenting opinion:
It seems to me that the court in this case loses sight ■entirely of substantial justice, and that a simple illustration will show this: Jones is a common carrier in the city of Louisville, whose business is to deliver parcels for compensation. Smith has a bar of gold, of value in the market of $500. He delivers his bar of gold to Jones, to carry it to a jeweler, with a. written offer to sell it to the .jeweler for $500. Jones loses the writing stipulating the price, and thereupon gets up another, offering to sell the bar of gold for $300, and delivers the bar with this writing to the jeweler, who immediately accepts the proposition, and notifies Smith of his acceptance. Smith at once informs him that there is a mistake, and that the price is .$500. The jeweler insists on bis bargain, and .plain Mr. 'Smith, being ignorant of the .intricacies .of the law, is in great trouble. So he goes to see,Jones, and tells him the situation. He asks Jones what he must do, and wants to know if Jones will pay the $200 if he lets t'he jeweler keep the bar of gold at $300. But Jones knows something -of the uncertainty of the law, and says •to Smith: “It ds true, I have been negligent and I have ■gotten you into trouble, but you must get out the best way you can. I can not tell you what to do. My busi
Whether appellees used ordinary care in not executing .a bond in the Ohio court, and thus .regaining possession of the potatoes, or in failing to have the property sold at ■once, or in any other step taken or omitted in that action, was a question-for the jury. This was all clearly submitted to the jury by the court below, and they found ¡against ¡appellant on the issue. In determining what was
Petition for rehearing overruled.