Barker v. W. Union Tel. Co.

• Decision Date: 08 January 1908
• Citation: 134 Wis. 147,114 N.W. 439
• Parties: BARKER v. WESTERN UNION TELEGRAPH CO.
• Court: Wisconsin Supreme Court

134 Wis. 147

114 N.W. 439

BARKER

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Charles E. Barker against the Western Union Telegraph Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with directions to overrule the demurrer.

Appeal from order sustaining demurrer to the complaint. That instrument alleges that plaintiff has built up an active practice in the treatment of certain diseases in and around Madison, Wis., extending as far as Chicago, and in said business was well known to defendant and its agents and employés; that on April 22, 1905, a certain Chicago man, whose condition was desperate, learning of plaintiff's abilities, had decided and determined to abandon a trip to Arizona, and to take treatment from plaintiff if the latter was in a position to receive him therefor; that thereupon he caused to be sent to plaintiff a telegram, signed by a mutual acquaintance, as follows: “Englewood, Ill. April 22, 1905. To Mr. Chas. E. Barker, care of Harnan House, Madison, Wis. Will you be in Madison Sunday or will you come to Chicago. Have a man that wants to see you at once. Wire me care Goes Litho. Co. 158 Adams Street. J. J. Hansberry.” Defendant, through negligence, failed and neglected to deliver said message to the plaintiff, whereby the Chicago man, receiving no response, and having transportation for Arizona already purchased, left before plaintiff learned of his desire for treatment or of the sending of the telegram. Had said message been delivered to plaintiff, he could and would have gone to Chicago in pursuance thereof, and said Chicago man would have returned with plaintiff and taken a course of treatment, as he had already fully determined to do; that, wholly because of the negligence of the defendant, this result was prevented, to the pecuniary damage of the plaintiff; and also that the defendant's negligence was gross and malicious, wherefore exemplary damages are also claimed.Richmond, Jackman & Swansen, for appellant.

A. G. Zimmerman and Rufus B. Smith (Geo. H. Fearons, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

The liability of telegraph companies for failure to perform their duty to correctly transmit and deliver messages, whether that duty result from a contract or otherwise, has been the subject of a vast amount of litigation and discussion. One question which has pervaded and confused a considerable majority of the decided cases has been eliminated by our statute (section 1778, St. 1898), making them “liable for all damages occasioned” by failure or negligence in performance of that duty. That statute, last carefully construed in Fisher v. Western Union Telegraph Co., 119 Wis. 146, 96 N. W. 545, has removed as a condition of liability all necessity that the telegraph company should have had in contemplation, or had any notice or suggestion of probability of, such damages as are in fact occasioned. “It is only necessary as to any particular result that it shall have been a natural consequence of the injury, having regard to the usual course of nature and of cause and effect in line of unbroken physical causation.” Fisher v. Telegraph Co., 119 Wis. 153, 96 N. W. 545. We are therefore absolved from consideration of whether there was anything upon the face of this telegram to suggest that loss of the character claimed would be suffered by reason of nondelivery. Indeed, counsel frankly concede this, as also that, upon the allegations of the complaint, a legal wrong was done plaintiff when defendant in breach of its duty, hence wrongfully deprived him of the information conveyed by the telegram; and that such wrong would be actionable if any injury can be shown to have resulted with reasonable certainty and beyond mere conjecture.

The concrete question with which we are confronted, therefore, is whether under the allegations of this complaint it is conceivable that evidence may be given that might satisfy a jury, not by conjecture, but by reasonable inferences from established facts according to the known course of nature and human nature, that plaintiff would have made pecuniary gains if he had received the telegram, and was prevented from so doing solely by its nondelivery without any intervening independent cause. We may concede that he cannot establish this by his testimony directly that he would have done one thing or another, because that would be merely expressing his opinion upon the very question of inference which the jury must answer if it is capable of answer at all. Hill v. Surety Co., 107 Wis. 19, 29, 81 N. W. 1024. But might not facts consistent with the allegations of the complaint be established so that the jury might legitimately infer a probable course of conduct? The law is full of illustrations based upon inferences as to future conduct, some so plain that they may be drawn without evidence by application of mere common knowledge of human and natural tendencies, others needing the aid of evidence as to custom, interest or formed intent, and the like. Allison v. Chandler, 11 Mich. 542, 555. Thus in Hill v. Surety Co. the inference as to what insurance companies would have done but for the negligence which denied them the opportunity was sustained by the proof of their custom under similar circumstances. Loss of earnings resulting from tortious injury can be established only by inference that the injured person would work. Sedgwick, Dam. § 180. Loss of profits can be established by inference from previous course of business. Sedgwick, Dam. § 182. In Derry v. Flitner, 118 Mass. 131, defendant wrongfully occupied a place of shelter to which plaintiff's vessels were entitled. Two of the latter were exposed to and sunk by storm. The court sustained inference that but for defendant's wrong they would have been in the place of safety. Damages for sales induced by tort are allowed merely on proof that sales could have been made at higher prices; the inference being drawn...