W.U. Tel. Co. v. Reynolds Bros.

Decision Date15 February 1883
Citation77 Va. 173
PartiesWESTERN UNION TELEGRAPH CO. v. REYNOLDS BROS.
CourtVirginia Supreme Court

Error to judgment of corporation court of city of Norfolk rendered against the defendant in the action lately therein pending wherein Reynolds Brothers were plaintiffs, and The Western Union Telegraph Company was defendant.

The facts are fully set forth in the opinion of Judge Lacy.

Robert Stiles, for the appellant.

Richard Walke, for the appellees.

OPINION

LACY J.

On the 17th day of October, 1878, Reynolds Bros., of Norfolk, presented at the office of the Western Union Telegraph Company, in that city, a dispatch to be sent over the sad company's line from Norfolk to Manchester, England. The telegraph company, the plaintiff in error, received this message together with the usual charges of the company, for sending a message of like kind, and undertook to send it forward.

This dispatch was never sent from the company's office in Norfolk, and so never reached its destination in Manchester, England.

For the failure to send this dispatch, the telegraph company was sued by the said Reynolds Brothers in the corporation court of the city of Norfolk in September, 1879. When this suit matured and came on for trial, there was a verdict for the plaintiff for $1,347.10, and judgment was entered against the defendant company accordingly on the twenty-first day of April, 1880.

From this judgment the telegraph company applied to this court for a writ of error and supersedeas, which was awarded on the 6th day of July, 1880.

The delinquency of the telegraph company seems to be as frankly and clearly admitted by the appellant, as it is charged and proved by the appellees. There is no question here, as there was none in the corporation court of Norfolk, as to the neglect and entire failure of the telegraph company to send the dispatch entrusted to it for transmission; and there is an admission of their liability to damages in the case, the only question at issue between the parties is the measure of damages.

And it is admitted, and is equally clear from the evidence in the case, that the actual loss sustained by Reynolds Brothers was the amount found by the jury of $1,347.10, nothing being added by the jury as punitive or vindictive damages. The appellant insists that the only damages for which it was liable was the price of the message actually paid them. The question then brought by this case before this court is, what is the measure of damages for which a telegraph company is liable upon a failure to send a dispatch received for transmission, and upon which the usual charges of the company had been paid under the laws of this state.

The statute of Virginia in regard to the transmission of dispatches by telegraph companies is as follows:

" It shall be the duty of every telegraph company doing business in this state to receive dispatches from and for other telegraph companies or lines, and from and for any person; and upon the payment of the usual charges therefor, according to the regulations of the company, to transmit the same faithfully and impartially, and as promptly as practicable, and in the order of delivery to the said company.

For every failure to transmit a dispatch faithfully and impartially, and for every failure to transmit a dispatch as promptly as practicable, or in the order of its delivery to the company, the company shall forfeit the sum of one hundred dollars to the person sending, or wishing to send such dispatch, and shall moreover be liable to an action of damages by any party aggrieved" * * * * * * *

Section 2d, chapter 65, Code of 1873, page 619.

This statute was enacted by the legislature in 1866, and has never been amended, altered or repealed, and is the law in Virginia. This statute provides for a penalty of one hundred dollars in every case of a failure to send a dispatch, as required by law, and gives moreover, and in addition, an action for damages to any party aggrieved by the failure of any telegraph company to send a dispatch in accordance with the requirements of the law. This statute has never been construed by the courts. The only reported case in this state was decided before the passage of the act. That is the case of the Washington and New Orleans Telegraph Co. v. Hobson, reported in 15th Grat. 122. Judge Daniel delivered the opinion of the court, which was unanimous. That case was not referred to by counsel who argued this case on either side.

That was an action on the case in the circuit court of the city of Richmond, instituted by John C. Hobson & Son v. The Washington and New Orleans Telegraph Co. The said Hobson & Son, on the 2d of March, 1854, delivered to the telegraph company, at Richmond, a message to Smith & Co., of Mobile, and paid the sum demanded for its transmission. The message ordered the purchase of five hundred bales of cotton. The message was changed in transmission to read twenty-five hundred instead of five hundred. Suit was instituted and tried November term, 1855; the verdict was for $7,341.45, with interest. That case was considered and decided in this court upon many questions growing out of the circumstances of that particular transaction, the proceedings on the trial, and the instructions given and refused by the court, which are not applicable to this case. In that case, however, it was decided among other things, that in an action against a telegraph company for damages sustained by the plaintiffs by the alteration of a message sent on their line, whereby an order to the plaintiff's factors in Mobile to buy five hundred bales of cotton was altered to twenty-five hundred bales, but not charging negligence in the company, an instruction that the defendants are not responsible as common carriers, but only as general agents, for such gross negligence as in law amounts to fraud, is not authorized by the pleadings, and was properly refused. In such case, if the company is liable to the plaintiffs for damages arising from the alteration of the message, the measure of these damages is what was lost on the sale at Mobile of the excess of the cotton above that ordered, or, if not sold there, what would have been the loss of the sale of the cotton at Mobile in the condition and circumstances in which it was when the mistake was ascertained, including in such loss all the proper costs and charges thereon. The court leaves open the question whether the telegraph company could be held liable as common carriers, because the question was not properly raised in that case. Judge Daniel in his opinion says: " It was, I think, the duty of the defendants in error, as soon as they were apprized of the mistake or alteration in their message, and of the purchase by their factors of the two thousand and seventy-eight bales of cotton, if they intended to hold the company responsible for the excess of the cotton over the five hundred bales of cotton, to have notified the company of such intention, to have made a tender of such excess to the company on the condition of its paying for the same, and all the charges incident to the purchase, & c. The principles and rules regulating the subject required, as I conceive, a sale of said five hundred bales of cotton also at the nearest market." In that case the company had offered to take the purchase of the cotton upon themselves, and this offer had been refused. In the judgment of the court we find the following: " That the said circuit court ought to have instructed the jury that in case they should find for the said defendant in error, they should, in fixing the amount for which to render their verdict, ascertain the loss sustained," & c., & c. From the comparative obscurity of the whole subject at that time, and in that case growing, in great measure, out of the subsequent transactions of the parties with the two thousand and seventy-eight bales of cotton which was purchased under this mistake, the court was debarred from passing upon many questions thereon, but the measure of damages does not seem to have been in doubt, and was declared to be the loss sustained by the senders of the message in consequence of the mistake or neglect of the telegraph company. At the time of the decision of this case there was no law in Virginia which declared specially that it should be the duty of the telegraph company to promptly send a message under a penalty.

Since that time, as we have seen, to-wit, in 1866, a law has been enacted by which a telegraph company is so commanded and directed, and every telegraph company which, since that time, has refused or failed to promptly, as promptly as practicable, transmit a dispatch delivered to it upon which the usual charges have been paid according to the regulations of the said company, has violated a statute of this state. And by the general law of this state, any person injured by the violation of any statute, may recover from the offender such damages as he may sustain by reason of the violation.

See fifth section, chapter 145, Code 1873, which is as follows: " Any person injured by the violation of any statute, may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages." This statute was adopted upon the recommendation of the revisors in their report to the general assembly in 1847, and was, as reference to their report shows, recommended and adopted as a general statute, and it seems, in terms, to provide for the measure of damages in any case in which there shall be an injury resulting from the violation of any statute in this state.

But it is earnestly contended that this is not the rule for the...

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22 cases
  • Connell v. The Western Union-Telegraph Company
    • United States
    • United States State Supreme Court of Missouri
    • May 16, 1893
    ...v. Tel. Co., 18 S.W. 604; Wadsworth v. Tel. Co., 2 Pick. (86 Tenn.) 695; S. C., 8 S.W. 574; Tel. Co. v. Fatman, 73 Ga. 285; Tel. Co. v. Reynolds, 77 Va. 173; Tel. Henderson, 89 Ala. 510; S. C., 7 So. Rep. 419; Beasely v. Tel. Co., 39 F. 181; Young v. Tel. Co., 107 N.C. 370; S. C., 11 S.E. 1......
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    ......525, par. C and pp. 527, 529, 530, 531;. Telegraph Co. v. Tel. Co., 5 Ohio Dec. (Reprint) . 407; affirmed 7 Birs. (U.S.) 367; 29 F. ... . .          NORTONI,. J. Goode, J., concurs. Reynolds, P. J., dissents. . .          . OPINION . [126 S.W. ......
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