194 Mo. App. 80 | Mo. Ct. App. | 1916
Action for $979 damages alleged to have been sustained by plaintiffs by reason of defendant’s failure to transmit and deliver a telegram. Trial by court without a jury. No declarations of law were asked or given, except a request by defendant for a peremptory instruction at the close of plaintiff’s case to tbe effect that under the pleadings, tbe evidence and the law, plaintiffs were not entitled to recover anything, except nominal damages — the price of the telegram— and costs, which the court refused to give. No evidence was offered by the defendant. Finding and judgment for plaintiffs for $549.30. Defendant appealed.
The petition, so far as material, is as follows:
*82 “Plaintiffs further state that on the 13th day of October, 1913, plaintiff, J. W. Tippin, presented at one of defendant’s offices at Kansas City, Missouri, for transmission and delivery, the following message in relation to plaintiffs ’ business:
‘Kansas City, Mo., 10/23, 1913.
‘To C. L. Coleman, Aurora, Mo.
‘Will give one fifty-two per hundred cwt., delivered in barrel or bulk to cars, everything except ciders and rots. One fifty is market. I add two cents as I want to handle your crop. Wire in morning. Care Blossom House.
‘J. W. Tippin/
“That said message was duly transmitted and delivered to the said Coleman at Aurora, Missouri, and that the said Coleman sent the following message in reply thereto:
‘Aurora, Mo., Oct. 14, 1913.
‘ J. W. Tippin, Care Blossom Hotel, ‘Kansas City, Mo.
‘I will sell my apple crop at the prices you name delivered at tables. You take all apples except ciders and those having soft hail peck or rots not larger than silver dime. You do the grading, furnish barrels, and do the packing. I will haul apples to you at cars, either at Aurora or Marionville, Missouri. Answer.
‘M. L. Coleman/
‘ ‘ That said message was duly transmitted and delivered by defendant to plaintiff, J. W. Tippin, at Kansas City, Missouri, and that on the said 14th day of October, 1913, he presented the following message in reply at one of defendant’s offices in Kansas City, Missouri, for transmission and delivery.
‘Kansas City, Mo., Oct. 14, 1913.
‘To C. L. Coleman, Aurora, Mo.
‘Will accept your proposition. Be there Sunday or Monday.
‘J. W. Tippin/
“That defendant, its agents and employees, carelessly and negligently failed to transmit, or deliver, said last-mentioned message to the same Coleman, and that*83 by reason of defendant’s carelessness and negligence in so failing to transmit and deliver said message, the said Coleman, believing that bis proposition had not been accepted, sold his entire crop to other parties, and plaintiff lost the benefit of such deal.
“Plaintiffs further state that at the time that said last described message was presented for transmission and delivery, they paid defendant the sum of thirty cents for the service requested. „
“Plaintiffs further state that there were fourteen hundred barrels of apples of the character plaintiffs attempted to contract for in the foregoing messages, and that plaintiff J. W. Tippin relying upon defendant faithfully transmitting and delivering the last-mentioned message to the said Coleman, sold eight hundred barrels of said apples, through the Collins Brokerage Company of Kansas City, Missouri, at the price of $3.25 per barrel, f. o. b.' Aurora, Missouri, which would have netted plaintiffs a profit of seventy-three cents per barrel, aggregating the sum of $584.” The petition then alleges that plaintiffs, believing the last-mentioned message had been transmitted and delivered, ordered a carload of barrels shipped to Aurora, and alleged damage in that connection. It is also charged that plaintiffs could have disposed of the remainder of the crop of apples at a profit. Also that plaintiffs became obligated to the Collins Brokerage Company for commission. But these last three items of damages were not included in the court’s finding for plaintiffs' and are not material.,
The court found that the facts as to the telegrams were as alleged; that J. W. Tippin did not discover that, the last-mentioned telegram was not delivered to Coleman until Sunday when he talked with Coleman Jay telephone, _ at which time he found that Coleman had sold the apples off of one forty acres of the orchard; that in the meantime and .upon the filing with the defendant of the acceptance of Coleman’s counter proposition, plaintiff J. W. Tippin contracted the sale of 800 barrels of number one apples, which he proposed to get out of the lot he was purchasing from Coleman, at a profit of seventy-three cents per barrel over the bulk price con
The defendant objected to the introduction of any evidence “because the petition does not state facts sufficient to constitute a cause of action; the petition is based upon a wrong rule of damages; and it appears from the face of the petition itself that the contract was completed between plaintiffs and Coleman, and therefore they cannot recover in this case for not getting that contract.” This was overruled and exception saved, and is the basis for the first assignment of error. It is argued that the delivery of the third telegram quoted in the petition to the telegraph company completed the contract between plaintiffs and Coleman; that upon such delivery to the telegraph company at Kansas City, on October 14th, Coleman became bound, and that for any breach of that contract thereafter made, Coleman, and not defendant, was liable; and upon this ground it is urged that the petition failed to state facts sufficient to constitute a cause of action against this defendant.
The only Missouri decision cited by appellant under tMs contention is that of Lungstrass v. German Ins. Co., 48 Mo. 201, 204. That case simply declares the now
Eespondents take the position that even though a contract was consummated by the parties, yet this would not relieve the appellant from an action on account of its tort; that respondents would have their election to proceed either against appellant for its tort or against Coleman for a breach of the contract; that a petition which states the delivery of a message for transmission and delivery to a telegraph company, the payment of the usual fee, and alleges negligence in the transmission or delivery of such message, states a cause of action and entitles the sender to recover all damages suffered, both general and special, citing section 3334, Revised Statutes 1909, and Bliss v. Telegraph Co., 30 Mo. App. 103; and that it is wholly immaterial whether the undelivered message consummates a contract between the sender and sendee, citing McGregor v. Western Union Tel. Co., 85 Mo. App. 308; Elam v. Western Union Tel. Co. 113 Mo. App. 538, 88 S. W. 115; and Western Union Tel. Co. v. Snow, 31 Tex. Civ. App. 275, 72 S. W. 250.
In the case of McGregor v. Western Union Tel. Co., supra, the plaintiff received a letter from one Gates offering him work as a timber estimator at five dollars per. day, requesting plaintiff to answer by wire. Plain
In Elam v. Western Union Tel. Co., supra, a wholesale dealer quoted prices on certain kinds of potatoes by telegraph to Elam, who wired his acceptance, ordering certain quantities, but the acceptance was not delivered to the wholesale dealer, and although there was a complete contract between Elam and the wholesale dealer, Elam was permitted to recover his damages from the telegraph company which was the difference in price he was compelled to pay for potatoes with which to fill outstanding orders which he had intended to fill out of this contract.
In Western Union Tel. Co. v. Snow, supra, plaintiff Snow wrote a letter to Cooper making an offer for cattle, and saying, “If I can get them, wire me at my expense and I will start or send a man at once.” Cooper answered by telegram: ‘Offer on cattle accepted. Come on quick.” There was a delay in delivering the telegram of acceptance, and Cooper sold the cattle to another, so that Snow lost the opportunity to buy 128 head of cattle for $6.50 per head when the market price at the place where they were was $8.50 per head. The telegraph company made the contention in that case, on demurrer, that the delayed telegram showed on its face an acceptance of the offer made, the effect of which was to consummate the sale of the cattle, and that Cooper was not authorized to breach the contract so made, but it was held that plaintiff could recover his damages from the telegraph company.
The case of Kenedy Mercantile Co. v. Western Union Tel. Co. (Tex. Civ. App.), 167 S. W. 1094, is fairly representative of the strongest authorities cited by ap
We think this subject is governed by our statute, section 3334, Revised Statutes 1909, which expressly provides that .telegraph companies “shall he liable for special damages occasioned by the failure or negligence of their operators or servants in receiving, copying, transmitting or delivering dispatches” — and that this remedy exists regardless of whether there was a completed contract between the negotiating parties to a transaction. We hold that the petition states a cause of action.
Now the plaintiffs’ action is based on this statute and sounds in tort. They alleged and proved as their special damages the loss of profit they would have netted on a contract of sale of 800 barrels of the number one apples in Coleman’s orchard. The court permitted a recovery of this anticipated profit. Appellant insisted throughout the trial and now contends that plaintiffs could recover only nominal damages; in other words, it is claimed that the court was in error as to the measure of damages adopted.
In many of the early cases of this character in this State we find the courts speaking time and again of the
In Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904, the action was held to be governed by the laws of Iowa relating to the liability of the telegraph company which provided that the telegraph company would be liable for all mistakes in transmitting messages made by any person in its employment and for all damages resulting from a failure to perform any of the duties required by law. The action was based on the negligence of the company. Plaintiff’s agent in Iowa wired plaintiff that he could get thirteen hundred dollars for certain real estate and said he must hear immediately. The message was delivered reading nineteen hundred dollars, and plaintiff wired him to sell, which he did for thirteen hundred dollars. When the plaintiff learned the facts she sued the telegraph company for the difference of six hundred dollars. The court held that the company was liable for its negligence and that the difference between the price received and the actual market value of the real estate was the proximate result of that negligence and the proper measure of damages. The court said there was no way of avoiding the damage except to sue the blameless purchaser or the negligent company and that plaintiff properly chose the latter course; and, speaking of the purchaser’s position, the court said (1. c. 676): “The purchaser dealt not by means of the telegraph but directly with the agent clothed with full power to sell. His vendor had selected the telegraph as the means of communication and as between vendor and vendee the vendor should bear the loss occasioned by that means, in the absence of any evidence of fraud or knowledge of error on part of the vendee.”
In McCarty v. Western Union Tel. Co., 116 Mo. App. 441, 91 S. W. 976, plaintiffs, dealers in mules at Clarence, Mo., proposed to sell them to one Pendleton of St. Louis for $135 a head and Pendleton agreed to wire on his return home whether he accepted the prop
In Thorp v. Western Union Tel. Co., 118 Mo. App. 398, 94 S. W. 554, the Crossan Fruit Company wired plaintiff for price on five cars of number one apples. Plaintiff replied as follows: ‘ ‘ Two fifteen largely Ben
There are three cases, two decided by the Kansas City Court of Appeals and one by the St. Louis Court of Appeals, not cited by either side, which put at rest many of the contentions in the briefs.
In Kerns & Lorton v. Western Union Tel. Co., 170 Mo. App. 642, 157 S. W. 106, plaintiffs delivered to the telegraph company at Kirksville, Mo., this telegram to J. M. Patterson of St. Louis: “Am mailing certified check for amount stated; Bill car Macon via Wabash, instead Milan. Answer. ’ ’ This was at 1:40 p. m. It was delayed until 7:30 p. m. (and it could have been reasonably delivered by 2:15 p. m.), by which time it was too late. Plaintiffs had theretofore ordered Patterson to ship them a carload of peaches from St. Louis to. Milan, Mo., over the Burlington Railroad, but after the order had been given, plaintiffs, thinking a better market could be had at Macon, concluded to have the peaches shipped there, and to have them come over the Wabash instead of the Burlington. It was for the purpose of changing the route and destination of the car of peaches that the telegram was sent. The peaches reached Milan about nine o’clock the nest morning; whereas, if the telegram had been delivered at any time prior to 4:00 p. m. the day it was sent, Patterson could have billed the car over the Wabash so that it would have reached_Milan about four o’clock instead of nine o’clock. It was shown how, by certain circumstances, the peaches could not be put on the market that day, so
Another case is that of Kerns & Lorton v. Western Union Tel. Co., 174 Mo. App. 435, 160 S. W. 556. The court in that case, among other things, said: ‘ ‘ Generally expressed, the measure of damages is the difference between the price that the sender of the message agreed to pay for the merchandise and the sum which he would have been compelled to pay at the same place', in order, by due diligence, to have purchased the like quantity and quality of the same species of'merchandise.” The evidence in our case is that plaintiffs could not have bought the same quantity at the same place, except perhaps in storage houses, and it is shown that the market price of number one apples, f. o, b. all loading stations within a radius of three hundred miles of Kansas City, Mo., was $3.25 per barrel, the price plaintiffs had agreed to re-sell for, so that in this case the result is the same whether it be said that the measure of damages is the
Tbe case decided by tbe St. Louis Court of Appeals is that of Fitch v. Western Union Tel. Co., 150 Mo. App. 149, 130 S. W. 44, wbicb bolds that tbe plaintiff in these cases has two forms of action — one in tort, tbe other on contract.
We do not agree with appellant’s contention that error was committed in respect to the measure of damages.
Nor do we think, under the evidence in this record, that plaintiffs could have done anything to minimize tbe damages.
Upon full consideration of all tbe contentions made by tbe appellant we are convinced that tbe case was correctly tried and tbe proper result reached. Nor do we think it necessary to look beyond tbe law of our own jurisdiction to ascertain tbe state of tbe law on the subjects involved. Tbe action is in tort, for a breach of the defendant’s public duty, wherein tbe damages recoverable are such as might reasonably have been expected to occur under tbe particular circumstances, and not such as are allowed for breach of a contract. As said in Kerns & Lorton v. Western Union Tel. Co., 170 Mo. App. l. c. 649, 157 S. W. 106: “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 (tort cases) tbe company need not have tbe same information of tbe nature of tbe message and tbe probable result which' would arise on a failure to properly transmit and deliver it as it would in an action on tbe contract. In other words, in actions in tort, ‘the injured party is not limited to damages wbicb might reasonably have been within tbe contemplation of tbe parties, but recovery may be bad for all tbe injurious results wbicb flow therefrom by ordinary natural sequence without tbe interposition of any other negligent or overpowering force.’ ” See, also,
The judgment is affirmed.