81 S.W. 581 | Tex. App. | 1904
This appeal is from a judgment of $1000 in favor of the appellee against appellants. The nature of the case will be indicated by our conclusions of fact, which are as follows:
The appellee, C. W. Mackenzie, was on the 25th day of December, 1902, and ever since has continued to be a building contractor, residing in the city of El Paso, Texas. On the day stated, G. H. French contemplated erecting a hotel building in the town of Douglas, Arizona Territory, according to certain plans and specifications, which had been drawn therefor. At that time and upon the dates hereinafter stated, appellant, the Texas Western Telegraph Company, owned a telegraph line extending from, to and through the towns of Benson and Douglas, Arizona, which line was operated by appellant, the Postal Telegraph-Cable Company, which maintained offices and agents in said town for receiving, transmitting and delivering messages. The Western Union Telegraph Company and the Postal Telegraph-Cable Company maintained a joint office and agent at Benson for receiving and transmitting telegrams over the respective lines operated by them. Telegrams from the city of El Paso, Texas, to Douglas, Arizona, were received at the first named city and transmitted by the Western Union Telegraph Company over its line to Benson, Arizona, where they were received by the *179 Postal Telegraph-Cable Company and sent over the line of the Texas-Western Telegraph Company to their destination.
A. E. Williams, acting for and as agent of G. H. French, on the 27th day of December, 1902, furnished appellee with copies of the plans and specifications of the hotel French contemplated building in Douglas, Arizona, and solicited Mackenzie as a building contractor to make and forward to him at Douglas a bid for the erection and construction of said building according to said plans and specifications. It was arranged and understood between Williams and appellee that the latter's bid should be in by the afternoon of December 29th, when it as well as those of other contractors who might bid on the building would be opened and the contract awarded to him whose bid might then be accepted by Mr. French, the latter, however, reserving the right to reject any and all bids. After receiving the plans and specifications, the appellee as expeditiously as possible made an estimate of the cost of erecting the building, and upon the morning of the 29th of December, 1902, concluded that he could take the contract for $10,500, and to bid that amount. Whereupon at about 11:30 o'clock on the morning of December 29th he went to the office of the Western Union Telegraph Company in El Paso, Texas, and delivered to its agent for transmission over its line to Benson, and thence over appellants' lines to Douglas, the following telegram: "12-29-02. — Mr. A. E. Williams, Douglas, Arizona: Bid ten thousand five hundred, good hand brick. Can rush building. If satisfactory wire today; will come tomorrow. C. W. Mackenzie." Paying to said company 65 cents for sending the message, which covered the full charges for transmitting messages to and delivery at Douglas. At the time he informed the operator of the import of the telegram, that it was very important, and that it should be transmitted and delivered right away — that the bids were going to be opened, and that they were waiting on his bid. The message was at once transmitted by the Western Union Telegraph Company, and was received at Benson at 11:14 a. m. Pacific time, which was 12:14 El Paso or mountain time. When transmitted, the Western Union indicated and informed the agent of the Postal Telegraph-Cable Company at Benson of its importance, and that it was a "rush" message. A copy of the message was then given to the operator of appellants' telegraph line extending from Benson to Douglas, with notice of its importance for immediate transmission to the last named town. Instead of promptly transmitting the telegram, it lay in the office at Benson two hours and twenty-one minutes before it was sent over appellants' line to Douglas. An hour would have been a reasonable time for the transmission of the message from El Paso and its delivery at Douglas, but it did not reach Douglas until 2:55 p. m. Pacific or local time, and it was not delivered to Williams until 10 o'clock on the next morning. These facts, as well as other facts and circumstances, show that appellants negligently delayed the transmission and delivery of said message. The bids for the building were opened between 5 and 6 o'clock on the evening of December 29, *180 1902, appellee's bid not having been received, and all were rejected, and the contract alone for the brick work on the building was awarded to one O'Connor. Appellee's was the lowest bid. Had appellants transmitted said message stating his bid, it would have been received by Williams and delivered to French before the bids were opened, and would have been considered, accepted, and the contract for the erection of the entire building, according to the plans and specifications, awarded to appellee, who would, as is reasonably shown by the evidence, have made a net profit on said contract of $1000. By reason of the negligent delay of appellants in the delivery of said telegram, the contract was lost to him, with the consequent loss of said profit he would have made thereon. Wherefore appellee was damaged by said negligence of appellants in the sum of $1000.
Conclusions of Law. — Where a telegram, offered and accepted for transmission, expresses the object of the sender, or the purpose and importance of the message are made known, and by actionable negligence is unreasonably delayed in its transmission and delivery, the telegraph company, if there be no valid regulation affecting the measure of damages, is liable for such injury as is the direct, natural and necessary cause of defeating the object which would have been accomplished by the seasonable delivery of the message. Western U. Tel. Co. v. Hoffman,
Bearing these principles in mind, we will now pass to the consideration of appellants' assignments of error. *181
The first complains of the court's refusing, at defendants' request, to peremptorily instruct a verdict in their favor; the second of its refusal to charge, at their instance, that the only damages the plaintiff could recover is the toll he paid for the telegram; the third, fourth, fifth, sixth and seventh, of the court's admission in evidence of and its failure to strike out the testimony of the witness G. H. French, to the effect that he would have accepted the bid of plaintiff and given him the contract to build the hotel at Douglas if he had been notified of Mackenzie's bid before the evening of December 29, 1902, and the eighth and ninth complain of the court's admitting in evidence and refusing to strike out the testimony of the witness A. E. Williams, to the effect that if appellee's bid had been received before the evening of December 29, 1902, he would have accepted the bid.
The insistence of appellants under these assignments is that had appellee's bid been received by French on the afternoon of December 29, 1902, and before the other bids were opened, it is altogether problematical and uncertain whether or not the contract would have been awarded to him. This insistence is based upon the proposition that the testimony of French and Williams to the effect that the contract would have been awarded appellee had his bid been received in time, is simply an expression of the witnesses' opinion, and was not relevant and competent to show that appellee's bid would have been accepted and the contract awarded him; that, therefore, there is no legal evidence to establish such fact, and consequently, without proof of it, no damages were shown to have accrued by reason of the delay in the delivery of the telegram.
The only means of proving whether appellee's bid would have been accepted or not was by the testimony of French and Williams, or the testimony of at least one of them. They alone could pass upon and accept the bids, and alone knew whether or not the bid of appellee was acceptable; if the proof could not be made by them it could not be made at all. The effect of holding that their testimony was not admissible upon this issue would be to say that in cases of this character the sender of a message of the greatest importance to him, the importance of which was known to the telegraph company, would have no redress whatever for the negligent failure of the company to perform its contract by transmitting and delivering it with reasonable dispatch, however great the damages might be, occasioned by such negligence.
In State Insurance Co. v. Jamison, 44 N.W. Rep., 371, the court in discussing a question similar to the one raised here said: "The most numerous, and we may say notable, cases of this character grow out of the failure of the telegraph companies to deliver dispatches, and damages are asked because of the failure to deliver, and the loss to the plaintiff has resulted from a failure to sell in the market; and in such cases the question is directly involved, if the party would have sold. The case of Parks v. Telegraph Co.,
In Willingsford v. Western U. Tel. Co., 38 S.E. Rep., 444, it was held by the Supreme Court of South Carolina, that where an issue as to what a person would have done had a telegram been delivered to him was raised by the pleadings, testimony tending to show what he would have done in such event was properly admitted in a suit against a telegraph company for negligently failing to deliver such telegram. In that suit plaintiff sought to recover for losses occasioned by prevention of a sale by the nondelivery of the telegram. In Hasbrouck v. Western U. Tel. Co., 77 N.W. Rep., 1037, Mr. Hasbrouck, a member of the plaintiff firm, was permitted to testify, as was also the other member, that if the telegram, as filed by Postern for transmission, had been received, they would not have sent the message they did send. The court held: "There was no error in permitting the answers; that it was a necessary fact to show under the issues, and it is difficult to imagine any other method of proving it. They were the only ones who knew the fact, and they did know it." See, also, Suth. on Damages, 3 ed., sec. 967, for cases where telegraph companies were held liable for the damages occasioned the senders of messages for loss of employment and profits of business, which, from the very nature of the cases, necessarily *183 required the plaintiffs to show what the sender or the sendee would have done or would not have done had it not been for the company's negligence in failing to properly transmit and deliver the messages. Those entertaining views different from the holding of the cases cited and referred to might read and consider with interest from section 960 to section 981 inclusive from Joyce on Electric Law, and the cases cited under those sections in support of the text.
It is conceded by appellants that evidence of what the sender or sendee of a telegram might or might not have done is admissible in that class of cases where mental anguish is an element of damages, and damages are sought to be recovered through the failure of the company to properly and expeditiously transmit and deliver the message. Cases belonging to that class where such evidence was admissible are too numerous in this State to require citation. Appellants contend that they are distinguishable from cases of the character of the one now under consideration. We must confess our inability to determine on any principle why such evidence is admissible in one class and not in the other. But the decisions in this State do not confine the admissibility of such testimony to the class of cases where mental anguish is an element of damages.
Western U. Tel. Co. v. Bowen,
In the case of Western U. Tel. Co. v. Mitchell,
In the case of Western U. Tel. Co. v. Partlow, 30 Texas Civ. App. 599[
It was thus shown that upon principle and by the weight of authority, in other States as well as in Texas, that the testimony of French and Williams, made the subject of the assignments under consideration, was relevant and admissible upon the issue of damages.
The plans and specifications for the building having been submitted by French's agent to appellee, with the request that he make a bid for its erection and construction, the acceptance of the bid made by appellee would have constituted a contract between the parties, the terms of which and the rights thereunder would have been definite, fixed and certain. None of the cases cited by appellants in support of their contention under these assignments is such as would show that a complete contract would have been made had it not been for the defendants' negligence, even though testimony as to what the sender or sendee of the telegram would or would not have done had it not been for such negligence. This distinguishes such cases from the one under consideration.
In Joske v. Pleasants, 15 Texas Civ. App. 433[
The appellee having lost the contract by reason of appellants' negligence, the measure of damages was the difference between the amount of his bid and the actual amount it would have cost him to erect the building according to the plans and specifications. The evidence is reasonably sufficient to show that this difference would have been $1000. In McLane v. Maurer, 28 Texas Civ. App. 75[
The court's charge correctly presents all the law applicable to the case, and there was no error in the court's refusing to give any of the special charges requested by appellants.
In our opinion there is no error which requires this court to reverse the judgment appealed from. It is therefore affirmed.
Affirmed.
Writ of error refused. *186