55 Fla. 462 | Fla. | 1908
Lead Opinion
{after stating the facts.)—The first and third assignments of error complain of the action of the court in permitting the witness, John D. Eastman, to testify as to certain losses suffered by plaintiffs in ef • fecting and performing a new charter of this vessel; the plaintiffs claiming that the new charter and the losses occasioned thereby were caused by the wrongful transmission of the telegram from Merritt to Eastman. ' The losses testified to by Eastman consisted of expenses incurred by plaintiffs in endeavoring to effect a new charter for the vessel, additional expenditures, port charges and loss of time made necessary while entering upon and performing the new charter and losses and differences of freight money occasioned by the new charter. The defendant objects to the testimony of the witness because: 1. The damages sought to be proved thereby are remote and speculative. 2. The damages were not in contemplation of the parties at the time of the alleged making of the contract for the transmission of the said telegram. The first objection is not argued, and will be treated as abandoned.
The testimony shows that Eastman was the captain and master of the schooner Doris, and plaintiffs were owners of this vessel. Merritt, one of the plaintiffs, was a ship broker and agent for the schooner at Pensacola, Florida. The Doris' was employed in the lumber business between the gulf, ports and the coast of Cuba. While this vessel was at Cardenas, Cuba, Eastman delivered to the defendant company the following cable message for transmission to Merritt:
“Cardenas. Dec. 24th, ’05.
Merritt,
Pensacola.
Offer 650 Tampa Nipe Bay. Answer quick. Eastman.”
This message was delivered to 'Mr. Merritt at his residence, by defendant’s messager, before noon, about eleven o’clock, December 25th, 1905. Up to one o’clock on that day, the only operator in charge of and at work in defendant’s office was H. B. Pinney. Upon receipt of this message that day, Merritt wrote on the back of it his intended reply, as follows: “Eastman, Cardenas, Close.”
Mr. Pinney testified that he was called to the ’phone to answer Merritt’s call. Merritt said he had a cable he wanted to ’phone. “He telephoned it to me and I telephoned it back to him, repeated it back to him,.” Pinney said he understood the message to be: “Eastman—Cardenas—Closed,” and then wrote out the message, as received by him, on a telegraph blank, and placed the same
“Cable The Western Union Telegraph Company. Received No. Time filed. Check.
’Phoned - 12 :4o, P. M. -
3 Pensacola, Chg. Merritt.
Pensacola, Fla. Dec. 25.
Eastman, Cardenas Closed.
1. C. R. M. ■ 60
At’ 12 152 P. M. - Pensacola, Original.”
Pinney testified that he received and filed this message at 12:40 P. M., that the figures 12:52 represent, the time it was sent, that he did not s-md this message, that he went off duty about one o’clock-' that day, and was succeeded by another operator, one McGuire, who sent the message ’phoned by Merritt and written by Pinney, a'nd that the Postal boy did not bring the message written by Merritt to the Western Union office while he was there.
We think the jury could reasonably conclude from the evidence that the “Postal boy” reached the Western Union-office with the written message from Merritt before the ’phone message was transmitted by MjcGuire; for the boy said he handed the message written by Merritt to the man in the office, and showed him the message and told him Mr. Merritt ’phoned him. before and wanted to make sure, and the man in the office said it was'all right.
If the man in the office was McGuire, he saw both messages and learned the nature and importance of them, for though he may not have known, up to that time, anything about the earlier message from Eastman, the message from Merritt was written on the back of the message from Eastman.
Even if the company was not bound thus with notice to McGuire of the terms of the message from Eastman
Let us consider the contention that there was nothing in the wording of the telegram from Merritt to Eastman to suggest such damages or losses as testified to by' Eastman, or that the injury alleged was not in the contemplation of the parties when the message was delivered for transmission.
The rule in this state, as to the measure of damages in actions against telegraph companies for negligence in
In Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 South. Rep. 495; the rule is stated thus: “in an action in tort against a telegraph company for tne breach of a public duty in negligently transmitting an incorrect copy of a message delivered to it for transmission, the damages that can be recovered are for the loss or injury sustained by the plaintiff as a proximate consequence of the defendant’s negligent act, which consequences were contemplated, or should have been contemplated, as probable or likely to follow the negligence.”
It follows, therefore, that where the message as delivered for transmission, is in cipher and unintelligible except to the sender and addressee, and no explanation made to the operator as to its import and importance, the telegraph company is liable for default in transmitting it correctly to pay nominal damages only, or, at most, the sum paid for its transmission and delivery. Where the message affords the only evidence of its import and importance, and the company is. not otherwise advised thereof, although it may be couched in unusual, abbreviated or technical language, yet, if it be sufficiently plain to indicate its nature and importance, that is, that it
It is not essential that the message disclose all the details of the transaction to which it relates, nor the particular business intended. The rule in Hadley v. Baxendale, therefore does not require that the parties must have contemplated the actual damages which are to be allowed, but such as may reasonably be supposed to- have been contemplated. It is not essential that the particular loss or injury sustained was contemplated, but the company is liable if the loss s.veined ' should have been contemplated as a pi ibable and . proximate result of its negligence. Western Union Tel. Co. v. Milton, supra. As was well said by Chief Justice Earl in Leonard v. N. Y. etc. Tel. Co., 41 N. Y. 544, text 567: “Parties entering into contracts usually contemplate that they will be performed , and not that they will be violated They very rarely actually contemplate any damages, which woiild ilow from any breach and very frequently have not sufficient information to know what such damages would be. As both parties are usually equally bound to know and be informed of the facts pertaining to the execution or breach of a contract, which they have entered into, I think a more precise statement of this rule is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.”
When the message does not contain words sufficiently plain to indicate its nature and importance, but the company acquires this knowledge from extrinsic facts at the
Where there is doubt as to whether the words contained in the message were sufficient to indicáte its importance, and whether this is> true with respect of the operator, or whether the latter was made more certain of its nature and importance by extrinsic facts, are questions for the jury. Jones on Telegraph and Telephones, Sec. 527; Pope v. Western Union Tel. Co., 4 Ill. App. 531.
We do mot think the message, reading, “Eastman, Cardenas Close,” which, it is' charged, the defendant negligently transmitted, is sufficiently plain to have indicated to the company’s agent that it was of importance, or to have apprised the company that a pecuniary loss would probably result from an incorrect transmission of it. But this message, read in the light of the evidence furnished by the earlier message, “Offer 650 Tampa Nipe Bay, answer quick,” clearly showed to the company’s operator that* it related to a business transaction of importance and that a pecuniary loss would probably result, unless it was promptly and correctly transmitted. The earlier message from Eastman to Merritt submitted an offer of some kind. The words “offer 650 Tampa Nipe Bay” show that the offer was about some business matter of pecuniary nature concerning the places named. The
It is not essential, as we have seen, that the message disclose all the details of the transaction tO' which it relates, or the particular business intended. Suppose the words of the message unexplained did not inform the operator that Eastman was the master of the ship Doris, and that he had been offered $6.50 per thousand feet for conveying lumber from Tampa to Nipe Bay, would that justify him in contemplating, within the rule in the Hadley case, no damages ¡as a result of his negligence or omission of duty in promptly and correctly sending it forward? As was said in Postal Tel. Cable Co. v. Lathrop, 131 Ill. 575, 23 N. E. Rep. 583, S. C. 19 Am. St. Rep. 55 : “It certainly cannot be contended that the agent must be informed of all the facts and circumstances pertaining to a transaction referred to ip a telegram, which are known by the parties themselves, to make his company liable for more than nominal damages. If it should be so held, the telegraph would cease to be of practical reliability in the commercial world.”
The messages in this case are not cipher messages They were sufficiently explicit and clear to charge the
The second assignment of error' is, that the court erred in permitting the witness Eastman to give the meaning of the following telegram received by him of the 23rd day of December, 1905,-directed to the schooner Doris:
“Havana Done 23,
Schooner Doris. Offer you 650 Tampa Nipe. Answer. Pratt.”
The'plaintiff had introduced testimony, by the witness Eastman, that he was captain of the schooner Doris; that the schooner was engaged in the lumber trade between the coast of Cuba and the Gulf Ports, and that Pratt was in the ship brokerage business at Havana,- and broker for Eastman; that witness had received the above telegram, and was familiar with the business of making charter parties, and that said telegram had a well understood meaning between people engaged in the business of making charter parties at that time. The plaintiffs then propounded to Eastman the following question: “State what that meaning was.” Defendant objected to die interpretation of the witness in regard to the meaning of the telegram. The court overruled the objection and the witness answered: “That meaning is that he would pay me $6.50 per thousand for a cargo of lumber from Tampa to Nipe Bay.”
The witness did not give his construction or interpretation of the message. He interpreted the writing in accordance'with the recognized meaning of the words as used in the trade or business out of which the transaction arose. The explanations were not inconsistent with the written terms. The abbrc-. iated expressions and figures in the telegram being a sort of mercantile shorthand were intelligible to the parties themselves and to those of the particular business in which the parties were
The fourth assignment of error challenges the correctness of the following instruction: “The burden of proving that a telephone message was transmitted before a written message confirming such telephone' message was- received by defendant, if such written message was received by it, is upon the defendant, and a mere notation of time sent, made by defendant’s agent on the telephone message as written down by an operator -of the defendant, is not evidence of such fact, where such notation was not made in the presence of the sender of the message.”
We think the court erred in giving that part of the instruction which had the effect of withdrawing from the consideration of the jury the notation of time when the message was sent.
Mr. Pinney, the telegraph operator, testified that he received the telegraph message as “closed,” wrote the message on a telegraph blank, and put the message on the hook that it might be sent. He put the figures 12 :4o on the message at the time he received it. He did not send the message and was not present when it was sent. He said the message was sent by McGuire, who came on duty as Pinney went off duty. The message, when introduced in evidence showed the figures 12152 written thereon. Pinney was .asked what the figures meant. He testified that the figures 12:4o show'd the time he received
In support of the charge counsel'say that “in order to control the effect of the notation or memorandum made on the paper by another person not a witness, without the knowledge of plaintiffs, requested an instruction that the mere notation of time sent made under such circumstances by a person not a witness was not evidence of the fact. The instruction withdrew' nothing from the jury except this mere notation, and, as it was purely hearsay, it was proper to so withdraw it. The request to charge whs equivalent to a motion to strike, and giving it, equivalent to granting the motion.” Counsel contend that the principle announced in Roberson v. State, 40 Fla. 509, 24 South. Rep. 474, headnote 12, is applicable here. The language of the headnote referred to is as follows: “If evidence introduced tends to prove an irrelevant or immaterial fact, as well as one material and relevant, the court properly refuses an instruction withdrawing such evidence entirely from the consideration of the jury, but errs if it refuses an instruction properly framed, limiting the consideration of such evidence by the jury, to, its legitimate purpose.” The evidence furnished by the notation of the time sent as testified by witness was not irrelevant or immaterial. Upon the question of the negligence of defendant, it became important to know whether the written message confirming the telephone message was received by defendant before the telephone message was transmitted. The charge given by the court placed the burden of proving this fact upon the defendant; and yet the same charge withdrew evidence of the time when the telephone message was sent from the consideration of the jury. It is true that the witness did not
The fifth, sixth, seventh and eighth assignments of error have been argued and will be considered together. The defendant requested the court to give the following instruction: “(-12) If you find from the evidence that on or about the 25th day of December, 1905, the plaintiffs- or some one in their behalf, at about the hour of 12:4o, p. m. called up thg office of the defendant at Pensacola, Florida, by and -over the telephone, and that the -call -was answered by an employe of the defendant,- and the person calling over the telephone thereupon directed that a cable be sent in words and figures as follows, to-wit: ‘Eastman, Cardenas, Closed/ and that the message was transmitted as delivered to the defendant, then the defendant is not guilty.” But the court added to said instruction, after the word “closed,” the words “and that there was no written or other notice to- the defendant that the final word was “close,” and gave the
This charge as requested omitted reference to a part of the testimony. The addition made by the court supplied this defect, but it would be safer to properly confine the time when the written or other notice was given to defendant that the final word was-“close,” if it be found by the jury that such notice was given.
This disposes of the objections to. similar additions made by the court to other charges given at request of defendant.
The ninth and tenth assignments challenge the sufficiency of the evidence to support the verdict. As this case must be sent back for another trial, we will not express an opinion on the sufficiency of the evidence.
The eleventh and twelfth assignments of error are based upon the action of the court in overruling the motion of defendant to strike certain parts of the amended declaration. The parts of the amended declaration sought to be stricken by this .motion, explanatory of the meaning of the telegrams are not improperly used to make the declaration more intelligible to the court and jury, and to make out the cause of action of plaintiff.
Another part of the amended declaration sought to be stricken alleges that the offered charter would have been closed and the voyage would have been performed had the telegram been transmitted and delivered to Eastman in the same language as it was delivered to the defendant. This allegation of the declaration is proper in order to show the proximate cause,of the injury, as the plaintiff must allege that the negligence of the defendant in transmitting -the message was the proximate cause of the injury. 21 Ency. Pl. & Pr. 514.
The thirteenth and fourteenth assignments rest upon the action of the court in overruling the demurrer to the
The first ground of demurrer is too general. Eastman was not required to “take any care to ascertain the correctness or'-incorrectness of the message received in answer to his cablegram.” This disposes of the eighth ground of the demurrer.
The declaration shows that the person who offered to charter the vessel “Doris,” “was able ... to charter the said vessel for $6.50 per thousand feet of lumber W]hich could be carried as a cargo by said vessel from Tampa to Nipe Bay.” This disposes of the ninth ground of the demurrer.
The tenth ground of the demurrer is as follows: “The declaration does not show that the person alleged to have made the offer of six dollars and fifty cents per thousand feet for the vessel from Tampa to Nipe Bay, ever refused to make and carry out said contract, or after the time the captain of the schooner ascertained that the mistake had been made in the transmission of the message to him from Tampa, as alleged in the declaration.” The plaintiff does not claim damages for a refusal to carry out a contract by the person offering to charter the schooner “Doris.” The declaration alleges that the captain of aid vessel declined the offer of the person to charter the said vessel, because the defendant company negligently and carelessly altered the message transmitted and delivered to the captain that he understood by the message delivered to him that he was not authorized to close the charter offered to him. This disposes of this ground of the demurrer.
We think the declaration does allege “that the mistake said to have been made in the telegram as delivered to the captain of the schooner was caused by the negli
The other grounds of demurrer relied upon seem to be directed to the bill of particulars and to the question of damages. A demurrer does not lie to a bill of particulars. A demurrer does not reach the. question of damages, if the declaration shows a valid claim to any damages whatever. Borden v. Western Union Tel. Co., 32 Fla. 394, 13 South. Rep. 876; Cline v. Tampa Water Works Co., 46 Fla. 459, 35 South. Rep. 8; Western Union Tel. Co. v. Wells, 50 Fla. 474, 39 South. Rep. 838; 7 Am. & Eng. Ann. Cas. 531; Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 South. Rep. 495, and cases there cited.
The fifteenth and sixteenth assignments of error are predicated upon the denial by the court of defendant’s motion to compel the plaintiffs to amend and reform their original and amended declaration,- so that it would claim. as dam,ages only the amount paid for sending' the telegram.
When the message is taken with the one to which it was a reply, it is sufficient to apprise the defendant that it related to a business matter of importance and to - require attention to its consequences. Under these circumstances if the negligence of the defendant was the proximate case of the loss of the plaintiff, the defendant is liable for all the injurious consequences of the negligence that should have been contemplated, if such attention had been given to the message as its terms indicated it was entitled to. The motion was properly denied. The motion, however, should have stated that the declaration was so framed as to prejudice, embarrass or delay a fair trial of the case.
The judgment is reversed.
Shackleford, C. J., and Whitfield, J., concur.
Concurrence Opinion
(concurring.)
In the case of Western Union Telegraph Company v. Milton, 53 Fla. 484, 43 South. Rep. 495, this court-reaffirmed the rule that if a declaration entitled the plaintiff to recover even nominal damages a demurrer thereto will not lie, even though it claims other or greater damages than the case made may legally entitle the plaintiff to recover. Such a question is properly raised by objections to testimony at the trial, by instructions to the jury, or by requiring the declaration to be reformed.
The question of the sufficiency of the declaration to entitle the plaintiffs to recover other than nominal damages was, I think, properly raised by objections to some of the testimony offered and which are embraced in the assignments of error.
This court has repeatedly held that a declaration in an action at law should allege distinctly every fact that is essential to the plaintiffs’ right of action. Milligan v.
In the instant case the telegram sent by Eastman, the master of the vessel from Cardenas, 'to Mierritt, at Pensacola, Florida, is as follows: “Offer 650 Tampa Nipe Bay. Answer quick.” The answer was “close;” and it is alleged that this was incorrectly sent “closed.” It seems to me that these words unexplained, are unintelligible to the ordinary reader, and do not convey to the mind any notion whatever that Eastman was the master of the ship “Doris,” and that he had been offered $6.50 per thousand feet for carrying' lumber from Tampa to Nipe Bay, or that they related to-a business transaction of much importance, and that a loss would probably result unless they wfere properly and correctly transmitted. There is no allegation in the declaration that the agent of the defendant knew its import or that he was advised of circumstances which would put him on notice that the message involved matters where considerable values were involved. In the case of Western Union Tel. Co. v. Milton, supra, the declaration sets out the telegram from John Milton to Geo. H. McFadden & Brothers, Agency, and alleges that “Geo. H. McFadden & Bros. Agency was engaged in the business of purchasing and selling cotton on and before said date (message' and the said words one hundred and seventy-five meant 175 bales of cotton which plaintiff had that day purchased for the account of the said Geo. H. McFadden & Bros. Agency, and that Geo. H. McFadden & Bros. Agency was engaged in dealing in cotton, and that plaintiff had been engaged in shipping cotton to and buying cotton for said agency was zvell known to the said defendant. In the body of the opinion, p. 500 it is said: “It is further alleged that defendant well knew that George H. McFadden & Brothers Agency was engaged in dealing in cotton, and thqt the plaintiff had beer engaged in shipping cotton to and buying cotton for said
In the case of Western Union Tel. Co. v. Wilson, 32 Fla. 527, 14 South. Rep. 1, this court held: “The liability of a telegraph company for failure to transmit and deliver a message written in unexplained cipher, or in language unintelligible except to those having a key to its hidden meaning, is for nominal damages, or at mostfor the sum paid as the price for its transmission and delivery.” In that case this court held the rule in Hadley v. Baxendale, 9 Exch. 341, applicable to suits on the contracts of telegraph companies for the transmission of messages overruling the case of Western Union Tel. Co. v. Hyer Bros., 22 Fla. 637. The court, referring to the decided cases, says the great weight of authority favors this view. Since the case of Western Union Tel. Co. v. Wilson was decided, the Supreme Court of the United States in Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. Rep. 1098. has adopted the same rule. See, also, Hill v. Western Union Tel. Co., 42 S. C. 367, 20 S. E. Rep. 135; S. C. 46 Am. St. Rep. 734, and note. This doctrine is recognized in Western Union Tel. C. v. Milton, supra; on page 501 of the opinion where it is said: “In an action in tort against a telegraph company for breach of a public duty in negligently transmitting an incorrect copy of a message delivered to it for transmission, the damages that can be recovered are for the loss or injury sustained by thfe plaintiff as a proximate consequence of the defendant’s negligent act, which consequence the parties contemplated, or should have contemplated, as probably to follow from a breach of the duty.”
In the case of Western Union Tel. Co. v. McKinney. 2 Tex. App. Civil Cases, § 644, the message was “Twenty lumps, five looms, five buffs, five bucks.” This message was understood by the sender to mean, and would
In the case of Capers v. Western Union Tel. Co., 71 S. C. 29, 50 S. E. Rep. 537, it is held that in order to recover damages from a telegraph company for delay in delivery of a telegram it is essential where a recovery is -based on its special nature, that knowledge of its special importance should appear from the language of the telegram, or that it be alleged that the defendant was otherwise informed of its special importance. In this case the telegram was in these' words: “Beaufort, S. C. 2-29, 1904. To C. W. Butler. No letter received. Send to Yemassee conductor in morning. W. E. Capers.” See, also, 21 Ency. Pl. & Pr., 516.
Considering the unintelligible character of the words used in the telegrams in the instant case, I think that in order for the plaintiffs to be entitled to recover other than the cost of sending the telegrams or nominal damages, the declaration should have alleged that the defendant’s operator was informed of the meaning of the messages or that they related to a matter of business of importance, and that this should have been proven. In
Concurrence Opinion
(concurring.)
I concur in the main with the opinion prepared by Mr. Justice Parkhill.
There is a difficulty disclosed on the record though not properly presented that gives me much concern. I cannot free my mind from the thought that the real negligence causing the loss was first the selection by Merritt of the inapt word “close,” which as written presents ambiguous meanings, and, secondly, the peculiar construction placed by Eastman upon the word “closed.” No cipher is involved, merely the usual meaning of ordinary English words, and it would seem that the latter word presents- as clearly the meaning intended to be conveyed as the former.
Concurrence Opinion
—I concur in the foregoing opinion of Mr. Justice Hocker, except that I think that the rule in Hadley v. Baxendale requires that the message involved in such cases in the absence of explanation of its meaning, must be so intelligible that the telegraph company can be informed thereby, not only that it relates to a matter of “business importance,” but that i-t should be such that the company may contemplate and see from its terms what damages, will probably result from their failure to transmit it as they contract to do. Any other construction of the rule practically emasculates it, and practically overrules the case of West. U. Tel. Co. v. Wilson, 32 Fla. 527, 14 South. Rep. 1, where the reason of the rule is discussed at length.
