32 Fla. 527 | Fla. | 1893
'The appellee sued the appellant in the Circuit Court of Escambia county, in case, for damages for its failure to transmit and deliver a telegraphic message in
The declaration alleges as follows: “That the Western Union Telegraph Company, a corporation, the-defendant, on the 12th day of December, 1887, was-engaged in the business of transmitting telegraphic, messages between Pensacola, Florida, and New York, in the state of New York, and in the delivery thereof' to other cable and telegraph companies for transmission to Liverpool, England, where the said plaintiff had a regular merchant-broker or agent, to-wit: one A.. Dobell, through whom the plaintiff negotiated, by means of such messages, the sale in Europe of cargoes of lumber and timber, the plaintiff being then and there a timber and lumber merchant at the city of Pensacola. That on said day the plaintiff delivered to the- ^ defendant, and the defendant received from him at its , office in the city of Pensacola, and undertook to trails--,mit, and cause to be transmitted, and it was its duty to transmit, and cause to be transmitted, to the said' A. Dobell the following cipher message:: ‘Dobell, .Liverpool: Grladfulness — shipment — rosa—bonheur— luciform — banewort—margin,’ which the said Dobell would have understood, and the plaintiff intended to-be an offer of a cargo of lumber- and timber from said port of Pensacola for sale through the said Dobell in-Europe, and the said Dobell would have sold the same for the plaintiff on the terms of' said offer at a profit to the plaintiff of twelve hurdred dollars, but the defendant failed and neglected to- send the said message in violation of its duty to the plaintiff; and to the plaintiff’s loss of $1,200,” and therefore-he sues,, etc.
At the trial the plaintiff, over the defendant’s objection, was permitted to testify,, m establishment of the-
That the rule formulated in Hadley vs. Baxendale, supra, is the one properly applicable to the contracts of telegraph companies for the transmission of messages, lias the support of the ■overwhelming weight of the decided cases, not only as to the numerical strength of the decisions concurring therein, but in the logical soundness of the reasoning upon which their conclusions rest, as will be seen from the following authorities: W. U. Tel. Co. vs. Hall, 124 U. S., 444; Sanders vs. Stuart, L. R. 1 C. P. Div., 326; Behm vs. W. U. Tel. Co., 8 Biss., 131; White vs. W. E. Tel. Co., 14 Fed. Rep., 710; Baldwin vs. U. S. Tel. Co., 45 N. Y., 744; W. U. Tel. Co. vs. Graham, 1 Col., 230; s. c. 9 Am. Rep., 136; First National Bank vs. Telegraph Co., 30 Ohio St., 555; s. c. 27 Am. Rep., 485; Candee vs. W. U. Tel. Co., 34 Wis., 471; s. C. 17 Am. Rep., 452; Daniel vs. W. U. Tel. Co., 61 Texas, 452, s. c. 48 Am. Rep., 305; Beaupre vs.
There is another feature presented in the proofs, aside from all that has been said upon the rule of damages in such cases, that would prevent the recovery had in this case. The plaintiff himself testifies that he received from his agent Dobell in Europe an offer for the cargo of timber. What that offer was is nowhere stated or shown. Then he says: *T decided to mcüce a final proposition,■ which I did by taking the message to the telegraph office that was not sent, which message -when translated was anpffer by me of said cargo of timber for sale at 54 shillings per load.” Then he says that he missed -the sale of the cargo at the terms offered by him in his message in consequence of the defendant’s failure to send it, and, consequently, had to sell on the market for the best price he could get, which was 52 shillings per load. There is not a -word of proof in the record to show that his offer contained' in the uusent message would ever have been accepted, or that he could ever at any time have sold the timber at the .price at which he so offered it, or that it could ever have been sold at any greater price than the one he actually received for same, whether his message had 1; een sent or not. Yet in the
The appellee contends that because of the decision in W. U. Tel. Co. vs. Hyer Bros., supra, the question of damages can not be considered, that, as to this case, it is stare decisis. This doctrine, as we understand it, is properly applicable to decisions furnishing rules of property, and those construing statutes, and to those passing upon the validity of contracts in which investments have or may have been made upon the faith of the adjudication as to their validity, in which cases former decisions upon the same questions will be adhered to, but we do not think this case fails within the rule.
In reversing the former ruling of the court in Hyer Bros., we do not interfere with any vested right, acquired upon the faith of that adj udication, but pass upon the rule of damages, as upon an abstract proposition," to follow the breach of such contracts. Of the erroneousness of the rule as laid down in that case, we are'perfectly and clearly satisfied; and, in such case, in determining the propriety of overruling it as a solemn adjudication, we are to be governed largely by a consideration of the results that will likely flow from the enunciation and establishment, of the one or the other of the two rules. If, in such case, we conclude that the affirmance of what we deem to be the erroneous rule in that case, will be productive of more far-reaching and harmful results than would follow the disaffirmance thereof, then it becomes our duty to over
The judgment appealed from is reversed, and a new trial ordered.
A reconsideration of the question of the measure of damages involved here confirms the correctness of the view's expressed in my dissenting opinion in W. U. Tel. Co. vs. Hyer Bros., 22 Fla., 649 et seq., 1 South. Rep., 129, and I concur in the opinion of Judge Taylor, that the rule followed in the case mentioned is unfair and ought not to be perpetuated; and, without committing myself further upon the question of stare decisis, my ■conclusion is that more injury will result in the future from adhering to the rule of the Hyer case than will •accrue to parties to past transactions from changing it. and that the judgment should be reversed. Cooley’s
The question of liability to damage for a failure on the part of a telegraph company to send a cipher message is not a new one in this court. Over six years ago this question was deliberately settled here by the decision in the case of Western Union Telegraph Co. vs. Hyer Bros., 22 Fla., 632. It is proposed now to reverse this case and my view is that it should not be done. Every question in reference to cipher messages entering into the case now before us was fully discussed and maturely considered in the Hyer case, and this case has the support of decisions in Alabama, Mississippi, Georgia and Virginia. ■ Under the decision in the Hyer case there was a remedy for damages for a failure on the part of a telegraph company to send a cipher message when it had for compensation agreed to do so. There is much merit in the rule that where the company holds itself out to the public as a transmitter of cipher messages for pay, it should not be allowed, after receiving the money and agreeing to send the message, to deny its liability for damages resulting from its own violation of duty, on the ground that the message was in cipher and its contents not known to the company when it agreed to send it. This court having planted itself in favor of this rule over six years ago I do not think we should now disturb it. I do not see how greater harm will result from adhering to the decision than overruling it.