No. 49, E. D. | Pa. | Feb 6, 1888
Opinion by
We see no error in permitting the witness Landis to answer the question, “Did you soil the sheep at that price ?” The sheep had been sold to arrive at $6 per hundred. The allegation of the plaintiffs was that they had been sold for less than their value by reason of the error in the telegram, and he claimed to recover the difference as the measure of damages. The defendant company could not have been injured by the reply of the witness.
The second assignment does not appear to be sustained by an exception and is moreover without merit. Nor do we think it was error to refuse to permit the defendant to prove by the witness, Shuster, the practice or method pursued by the company in regard to repeated messages. What either party did or omitted to do upon this particular occasion was competent.
The fourth assignment alleges error in the charge of the court. A careful examination of the evidence leads us to a different conclusion. The message came from the stock yards near Pittsburgh, to Philadelphia. When delivered at that place to the plaintiffs they feared there was a mistake and went at once to the office of the company and asked the operator to wire back for information. The witness said: “I think I went right away to the operator and asked him to ask Erisman whether it was 'five six,’ or 'five sixty,’ and he said: 'I have asked him.’ The reason he had asked was 'lie thought it was funny it was five six.’ ” This was substantially “uncontradicted.” The plaintiffs could only understand from it that the operator had wired back to inquire if the message had been transmitted correctly. The fact that nothing was paid for this service is not important. Had there been a demand and a refusal to pay, there would have been more force in the point. Aside from this the plaintiffs had a current account with the company, and paid on bills rendered on stated occasions.
The fifth and last assignment relates to the measure of damages. The court was asked to say to the jury that as the plaintiffs had sold the sheep at more than cost, they sustained no damage. This the court declined to do, and in this we see no
In that case an order to purchase stocks was sent to a broker in New York. The message was never delivered, causing a delay in the purchase of the stock which in the meantime had advanced in price. The plaintiff was allowed to recover the difference.
It was urged by the plaintiff in error that the telegram did not disclose its meaning so as to enable the operator to understand the importance of its correct transmission, and that the company could not have been aware of the extent of its responsibility for an error. United States Teleg. Co. v. Wenger was cited to sustain this view.
That, however, was a case where the negligence was a failure to deliver the telegram. Some of the other cases cited were also for delay in delivery. It seems reasonable that where damages are claimed for mere delay in delivery, the face of the telegram ought to contain something to put the company upon its guard. A delay of a day or even a few hours might cause a heavy loss. But the case in hand is one of erroneous transmission, and the loss was by reason of such error. The plaintiffs, were receiving daily, and sometimes several times daily, telegrams of a similar character regarding stock. There was enough upon its fact to indicate to the operator that it referred to sheep to be shipped to Philadelphia, and their price.
Judgment affirmed.