Postal Tel. Cable Co. v. Schaefer

Decision Date17 May 1901
Citation62 S.W. 1119,110 Ky. 907
PartiesPOSTAL TEL. CABLE CO. v. SCHAEFER et al. [1]
CourtKentucky Court of Appeals

Appeal from circuit court, Jefferson county, common pleas division.

"To be officially reported."

Action by John Schaefer & Sons against the Postal Telegraph Cable Company to recover damages for failure to correctly transmit and deliver a message. Judgment for plaintiffs, and defendant appeals. Reversed.

Leopold & Pennebaker, J. B. McIntosh, and H. L. Stone, for appellant.

Zack Phelps, for appellees.

BURNAM J.

This suit was instituted by the appellees, who were plaintiffs in the court below, against appellants, who own and operate a telegraph line, to recover damages for their failure to correctly transmit and deliver a certain telegram to N Bernstein & Co., of Cleveland, Ohio. The facts necessary to a correct understanding of the case are as follows: On the 23d day of August, 1897, John Schaefer & Sons, wholesale produce and fruit merchants at Louisville, Ky. delivered to the defendant, for transmission to N. Bernstein & Co., produce brokers in Cleveland, Ohio, this telegram: "Bulk potatoes one seventy barrel. Can ship two cars nice stock to-day. Wire quick." The message was written out upon one of defendant's printed blanks. On the same day they received from Bernstein & Co., over the Western Union Telegraph line, the following response to their message "Telegram received. Ship two cars, your price." And in response to this telegram appellees shipped two cars of bulk potatoes, amounting to 340 barrels, at the same time advising Bernstein & Co. of the shipment by a telegram which reads as follows: "Ship cars L. & N. 15,231 and 15,483 potatoes via Big 4." And on the same day they mailed invoice with bill of lading attached to a draft for $589, or the price of 340 barrels of potatoes at $1.70 per barrel. On the 25th day of August, appellees received from Bernstein. & Co. a telegram which reads, viz "Bill received 2 cars potatoes one seventy bbl. Price named in message one seven bbl. Please explain." In response to this, appellant answered: "Our copy of telegram reads one seventy. Have notified telegraph company." And on the next day appellee received from the Ohio people the following message: "Your telegram delivered to us says one seven bbl. We shall insist upon the two cars that price. Instruct bank correct draft at rate of one seven bbl. Will give you until 3 o'clock. You will have to look to telegraph company, not to us." To which appellees replied on the same day: "We do not comply to your declaration of draft. See telegraph company if error." All these messages passed between the parties before the arrival of the potatoes at Cleveland, which was on the 27th, when Bernstein instituted a suit for damages against appellee for the difference between the contract price claimed by him and the value of the potatoes, and attached the potatoes in the hands of the railroad company. In a day or two thereafter, appellees notified appellant of the exact situation, and asked them whether they should accept $1.07 per barrel for the potatoes from Bernstein & Co. Appellant declined to advise them as to what course to pursue. They thereupon employed an attorney to defend the suit instituted against them by Bernstein & Co., and this litigation was prolonged for some time. The potatoes in the meantime were left in the cars on the track of the railroad company for several weeks, when they were sold for $250 to pay the freight; the overplus being held to await the result of the suit of Bernstein & Co. At the conclusion of the litigation with Bernstein & Co., the appellees, Schaefer & Sons, instituted this suit, in which they allege that they had not only lost all of their potatoes, which were worth $570, but in addition thereto had been compelled to pay out $321.51 in defending the suit instituted against them by Bernstein & Co., making the aggregate of $898.51, which was, however, to be credited with $114.10, the proceeds of the sale, less freight, leaving a balance of $785.41, which they alleged was directly attributable to the negligence and carelessness of the defendant in improperly transmitting their message. They also made a claim for damages arising from the loss of Bernstein's custom. The circuit judge sustained a general demurrer to all that part of the petition which sought to recover for attorney's fees, cost of the attachment suit, or any of the items except what he regarded as the direct loss on the potatoes. The defendant, in its answer, says that it is not liable to the plaintiff for the amount sued for, or for any amount: First. Because plaintiffs were under no legal obligations to deliver the potatoes sued for to Bernstein & Co. at the price of $1.07 per barrel, as the message of plaintiff and the response of Bernstein & Co. did not constitute a binding and legal contract between them, whereby plaintiffs were bound to ship the potatoes at the price named in the telegram. Second. Because the damages sued for are not the natural and proximate consequences of the mistake complained of in the transmission of plaintiffs' message to Bernstein & Co., and were not within the contemplation of the parties to the contract for the transmission of the telegram at the time it was sent. Third. That, as the dispatch was not repeated, their liability was, by the terms of the printed blank upon which it was written, limited to 40 cents,--the cost of the telegram. Fourth. It is insisted that in no event can they be liable for any greater sum than the difference in the price named in the telegram as received by it, and the fair market value of the potatoes on the Cleveland market when they arrived. Fifth. It is insisted that plaintiffs made no reasonable efforts to render their injury as small as possible, but negligently permitted the potatoes to remain in the cars until many of them were spoiled and destroyed. So much of the answer as pleaded that plaintiffs were under no legal obligation to deliver the potatoes sued for at the price of the delivered message, and also that part of the answer which denied liability because the dispatch was not repeated, was stricken out. A trial before a jury resulted in a verdict for $656, the value of 340 barrels of potatoes at $1.70, with 6 per cent. interest thereon from the 31st day of August, 1896; and, a motion for a new trial having been overruled, defendants prosecute this appeal.

It is complained that the court erred in its instruction as to the measure of damage, and also that the verdict is flagrantly against the weight of evidence. The instruction complained of is as follows, viz.: "The court instructs the jury that if they shall believe from the evidence that, by the negligence of the defendant or its agent, the telegram mentioned in the petition, sent by the plaintiffs to N. Bernstein, was changed so as to read $1.07, instead of $1.70, per barrel for the potatoes in controversy, when the said telegram was received by the said Bernstein & Co., and that plaintiffs were thereby damaged, then they should find for the plaintiffs in such a sum as they believe, from the evidence, represented the difference between potatoes at $1.70 per barrel and the sum for which the plaintiffs could have sold them at Cleveland, Ohio, after definitely learning of the mistake in the telegram by the exercise of ordinary care and diligence, if there was such mistake. If they find for the plaintiffs, they may, in their discretion, allow interest from the 23d day of August, 1897." The deposition of Nathan Bernstein was taken and read as evidence by the plaintiffs. He testified that he recovered a judgment against appellees for $187, and his costs by way of damages against appellee for failure to deliver 340 barrels of potatoes to him at $1.07 per barrel; that these potatoes were worth in Cleveland on the day on which they arrived in that city from $1.65 to $1.80 per barrel, with freight charges, which were about 28 cents a barrel added; that within a few days the price of potatoes began to decline in Cleveland because of the delivery of homegrown potatoes; and that, at the time the potatoes in contest were sold, they had remained locked up in the cars for several weeks, and that many of them had rotted; and that they only brought $250 for the whole lot.

It is the contention of appellees that appellant was their agent in sending the telegram to Bernstein & Co., and that the delivery of the erroneous message created and gave rise to a valid and enforceable contract on their part to deliver the potatoes to the sendee at the price named, and this view seems to have been taken by the Ohio magistrate who presided in the trial of the suit instituted by Bernstein & Co. against plaintiff; but, in our opinion, this view of the law is an erroneous one, and is in conflict with the great weight of authority both in England and in this country. Gray, in his treatise on Communications by Telegram (page 189), says "A telegraph company may perhaps be called a 'special agent,' since it is employed to do a particular act, namely, to communicate a certain message. If so, the employer is responsible on the message as delivered only where that message is the one which he authorized the company to communicate, as distinguished from a certain message." And he refers to Story, Ag. (8th Ed.) § § 120-133. The same author also says: "A person who employs a telegraph company authorizes it, and holds it out as authorized, only to communicate a certain message; and, while he is responsible upon the message if the company duly delivers it, he is not responsible upon any other message which the company may deliver in its stead." This exact question was fully considered in the case of Pepper v. Telegraph Co., decided by ...

To continue reading

Request your trial
22 cases
  • Clark v. Southern Ry. Co.
    • United States
    • Indiana Appellate Court
    • May 16, 1918
    ...36 L. R. A. 711, 66 Am. St. Rep. 361;Davis v. Western, etc., Co., 107 Ky. 528, 54 S. W. 849, 92 Am. St. Rep. 371;Postal, etc., Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119;Martin v. Pittsburgh, etc., Co., 203 U. S. 284, 27 Sup. Ct. 100, 51 L. Ed. 184, 8 Ann. Cas. 87;St. Joseph, etc., Co. v. ......
  • Clark v. Southern Railway Company
    • United States
    • Indiana Appellate Court
    • May 16, 1918
    ... ... on petition for rehearing; Western Union Tel. Co. v ... Eubanks & Russell (1897), 100 Ky. 591, 38 S.W. 1068, ... Co. (1900), 107 Ky. 527, 54 S.W. 849, 92 Am ... St. 371; Postal Tel. Cable Co. v. Schaefer ... (1901), 110 Ky. 907, 62 S.W. 1119, [69 ... ...
  • Strong v. Western Union Telegraph Co.
    • United States
    • Idaho Supreme Court
    • June 28, 1910
    ... ... correspondence. ( Pepper v. W. U. Tel. Co., 87 Tenn ... 554, 10 Am. St. 699, 11 S.W. 783, 4 L. R. A. 660, and ... 554, 10 Am. St. 699, 4 L. R. A ... 660, 11 S.W. 783; Postal Telegraph Cable Co. v ... Schaefer, 110 Ky. 907, 62 S.W. 1119; ... ...
  • On Rehearing
    • United States
    • Idaho Supreme Court
    • June 28, 1910
    ... ... correspondence. ( Pepper v. W. U. Tel. Co., 87 Tenn ... 554, 10 Am.St. 699, 11 S.W. 783, 4 L.R.A. 660, and ... 699, 4 L.R.A. 660, 11 S.W. 783; Postal Telegraph Cable ... Co. v. Schaefer, 110 Ky. 907, 62 S.W. 1119; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT