51 Fla. 351 | Fla. | 1906
(after stating the facts). The mere fact that a declaration, or count thereof, may set up elements-that do not enter into the measure of damages or greater damages, than- the case made legally entitles the plaintiff to recover, if any damages whatever may be recovered thereunder, though such damages be only nominal, does not make the declaration demurrable. Such questions are properly raised and settled by objections to testimony at the trial, or by instructions to the jury as to the law-applicable to the points raised, or may be cause for reforming the declaration under section 1043 R. S. 1892 as calculated to embarrass, the fair trial of the case. Borden v. Western Union Tel. Co., 32 Fla. 394, 13 South. Rep. 876; Jacksonville, T. & K. W. Ry. Co. v. Griffin, 33 Fla. 602, 15 South. Rep. 336; Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 South. Rep. 171; Cline v. Tampa Water Works Co., 46 Fla. 45, 35 South. Rep. 8, and cases cited; Muller v. Ocala Foundry & Ma
The substance of the evidence for the plaintiff Barlow was that he was a dealer in fruits and vegetables, and had his office at Orlando, Florida. George Holdin was a traveling railroad agent, but experienced in fruits and vegetables, and had bought and sold fruits and vegetables for Barlow. On the 22nd of June, 1903, Barlow wanted a car load of pine apples for his trade, and sent by the defendant company the following teleigram to Holdin who was supposed by him to be at Jensen, Florida: “To George Holdin, Jensen, Florida. Wire lowest price car of pines, good sizes. Quick. (Signed) T. H. Barlow.” A reply was promptly received a© follows: “T. H. Barlow, Orlando, Florida. Average thirty-three, three hundred crates. Price four hundred dollars. Immediately. (Signed) James Holmes.” Barlow claims that he did not read the name “James Holmes” signed to this telegram, but supposed it was from Holdin in answer to his telegram. Barlow again wired George Holdin “Will let you know as quick as am sure can take car pines.” In a few hours he decided to take the car of pines, and had the State Bank of Orlando prepare a telegram to George Holdin stating that a draft on Barlow for $400.00 would be honored. When Barlow handed this telegram to Miss Morrell, the agent in charge of the Western Union Telegraph Company’s office at Orlando, she called his attention to the fact that the telegram from Jensen was signed by “James Holmes,” and offered some kind of explanation to Barlow, which is not disclosed by the record. He then decided to send the money not to George Holdin, but to another party—a Mr. T. V. Moore, and he ikad the bank to wire the money to Moore.
The maxim “causa próxima, non remota, speetatur,” applies, to suits for breaches of contracts for the delivery of messages by Telegraph Companies. It is stated in 2nd Parsons on Contracts (9th ed.) bottom pages 296-297; that such companies are only liable for proximate or immediate, and not for distant consequences. If the Telegraph Company is in default, but their default is made mischievous to a party only by some other intervening cause this rule prevents the liability of the company because their default would be only the remota, the remote qr removed cause of the injury, and not the próxima, or nearest cause. For illustrations of the application of this doctrine see First National Bank of Barnesville v. Telegraph Company, 30 Ohio St., 555, S. C. 27 Am. Rep. 485; Pegram v. Western Union Tel. Co., 100 N. C. 28, 6 S. E. Rep. 770; Western Union Telegraph Company v. Cornwell, 2 Colo. 491; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, text 429, 12 Sup. Ct. Rep. 679; 7 Am. & Eng. Ency. Law (2nd ed.) 387; 27 Am. & Eng. Ency. Law (2nd ed.) 1060, and notes. Applying this doctrine to the facts of the case at bar, we are of the opinion that the próxima, or nearest cause, for the damages sustained by the plaintiff Barlow, was not the negligent act of the Telegraph Company in improperly delivering, or not delivering the message to Holdin, or in not reporting his absence from Jensen to Barlow, but that the proximate cause was the result of his direct dealing with Holmes. He say® that he supposed that Holdin would inspect or had inspected the pine apples, but he had no good reason for indulging such a supposition, for shortly after receiving the telegram from Holmes, the signature to which he did not
We therefore aire of the opinion that the only damages which could be recovered in this suit would be nominal, or at most the cost of transmitting the message to Holdin. The instruction requested by defendant should have been given.
The judgment is reversed, with directions for such further proceedings as may be consistent with this opinion.