Beatty Lumber Co. v. Western Union Tel. Co.

• Decision Date: 14 March 1903
• Citation: 44 S.E. 309,52 W.Va. 410
• Parties: BEATTY LUMBER CO. v. WESTERN UNION TELEGRAPH CO.
• Court: West Virginia Supreme Court

44 S.E. 309

52 W.Va. 410

BEATTY LUMBER CO. v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Appeals of West Virginia.

March 14, 1903

Submitted January 28, 1903.

Syllabus by the Court.

1. A condition upon a blank telegraphic message providing that the "company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message beyond the amount received for sending the same," is not valid and effective to excuse the telegraph company from liability for total omission to send or deliver a message.

2. A telegraphic message importing on its face a proposal to sell lumber is sufficient of itself to charge the telegraph company with notice of its importance, so as to call for prompt transmission and delivery.

3. Compensatory damages cannot be recovered of a telegraph company for failure to send or deliver a mere proposal to sell lumber, as they are contingent upon its acceptance.

4. In answer to a telegram to a lumber company asking whether it could furnish certain lumber, and at what price, a reply telegram that it could furnish it at a certain price was delivered to a telegraph company for transmission, but was either never sent or never delivered. In an action for damages by the lumber company against the telegraph company the measure of damages is not the difference between the cost of the lumber delivered at the point of delivery and the fixed price, but the difference between such price and the market value of the lumber at the time when delivery would have been made if the contract had been consummated.

Error from Circuit Court, Kanawha County; F. A. Guthrie, Judge.

Action by the Beatty Lumber Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed.

Simms & Enslow and Flournoy, Price & Smith, for plaintiff in error.

Payne & Payne and Brown, Jackson & Knight, for defendant in error.

BRANNON J.

Beatty Lumber Company brought an action against the Western Union Telegraph Company in the circuit court of Kanawha county, and recovered verdict and judgment for $1,684.45, for which judgment the telegraph company sued out the present writ of error. The claim for damages by the lumber company is predicated upon the fact that it delivered to the telegraph company at Glade Station a telegraphic message for transmission to G. Elias & Bro., and that the telegraph company either negligently omitted to send or to deliver the said message. G. Elias & Bro. had sent a dispatch requesting the lumber company to quote price on certain lumber, and the lumber company, in response, delivered to the telegraph company for transmission a reply message reading: "Can deliver the four-sixteen stringers at Buffalo in thirty days for twenty-one sixty per thousand feet. Commence shipping in five days. Beatty Lumber Company."

A question debated in this case is whether a condition written upon a blank message, reading, "It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message beyond the amount received for sending the same," is valid or void, in the eye of the law. This condition is found on all the blanks now used in telegraphy, coupled with a printed warning that it is safer, to guard against mistakes or delays, to have message repeated from the office of destination back to the originating office for comparison. The charge for this repetition is one-half the regular rate in addition to that rate. Whether such a condition is valid has been the prolific source of elaborate and able discussion in England and almost every one of the American states, and in the federal courts, and there is vast conflict of opinion between the courts upon the subject; many courts holding such a condition utterly void to exempt the company from liability, and others holding it valid, or partly valid. It is a well-established rule that a common carrier cannot make any contract or stipulation with one dealing with it by which it can screen itself from liability for loss arising from its negligence. This court recognized this doctrine in Brown v. Adams Express Company, 15 W.Va. 812. It is because of that doctrine that so many courts stamp the above condition as void, but it must be said that the preponderance of authority holds such condition valid, certainly to the extent of excusing the company from loss for want of ordinary care. 2 Thomp. on Neg. (2d Ed.) § 2422; 2 Sedgwick, § 876. The subject is ably discussed in Primrose v. Western Union Telegraph Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883; holding that clause valid to excuse from error in transmission of a cipher dispatch. I shall not elaborate the subject here, for the reason that whether or not such a condition, as to mere error in transmission, or delay in transmission or delivery, is valid, it certainly is not valid to excuse total failure to send or deliver a message. See note, 36 L.R.A. 711, for cases. The condition above given excuses only for delay in transmission, and such a condition would surely not be widened to cover total failure to send a message. As to that clause excusing total failure to deliver, it can be said that even those courts which hold such a condition good as to mere error in transmission recognize that it is not good to forgive a total failure to deliver or to transmit. What has repetition of the message back from the office of destination to that of its origin to do with a total failure to send or deliver? This condition has no relevancy, except as to such failure or error as might be cured by repetition. It is only to errors preventable by repetition that such a condition logically applies. Repetition could not prevent either failure to send or failure to deliver. Thomp. on Negl. § 2424; Crosswell on Electricity, §§ 525, 527. All authorities hold a company liable for gross negligence, willful misconduct, or bad faith or fraud. 2 Thomp. on Negl. §§ 2411, 2423; Crosswell on Electricity, § 510. The omission in this case is not one of mere inaccuracy in transmission, but either total failure to send or to deliver the message, and therefore we hold the clause no justification for omission of that character.

Another question debated in this case is whether the dispatch above quoted furnished warning to the company of its important import, so as to call upon it for diligence and care in prompt transmission and delivery. The law is, by the great weight of authority, that an enigmatical message, commonly called a "cipher message," or one which, though not such a message, is yet one so obscure that it is not intelligible to the telegraphic operator, does not render the company liable, in case of omission of the company to send or deliver, for full compensatory damages, but only for nominal damages; that is, the amount paid by the sender. The reason is, there is nothing on the face of the dispatch to warn the company of the importance of the message and to spur it to diligence, and thus we cannot say that the parties contemplated any special damages from omission of that duty required of the telegraph company by law. 2 Thomp, on Negl. §§ 2469, 2472; Crosswell on Electricity, § 609. This subject was fully discussed in Primrose v. Western Union Telegraph Company, 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883, and it was held that a cipher or obscure message will render a company liable to only nominal damage in case of default. I venture to say that this position is very doubtful, notwithstanding that I concede that it is law, upon a preponderance of authority. It would seem that a telegraph company receiving a message ought to presume, without information conveyed by the telegram or otherwise, that it is important, and that damage may ensue from its failure of duty. What right has it to ask whether it is important or not? Crosswell on Electricity, § 574. In the present case the message is plainly a commercial one. It plainly imports that it was an answer to an inquiry as to lumber, and that it proposed to sell and deliver lumber. Such a message affords no excuse for omission of duty by a telegraph company.

But the trouble facing the plaintiff in this case is that there was no finished contract between the parties but only a proposal for a contract, and there can be no contract without both a proposal and its acceptance. The failure of the telegraph company did not cause the breach of a consummated contract. It only prevented one that might or might not have been made. Where one sends a dispatch to buy an article, and the dispatch is not sent, and the price of that article rises, or a dispatch to sell an article, and the price falls, we can see a ground for damage proximately traceable to the omission to send the dispatch. So we can where there is a subsisting contract, and the failure of the telegraph company causes a breach of that contract. In this case, however, we can only guess or surmise that there would have been a binding contract, had the dispatch been sent. In order to give compensatory damages, we have to surmise and conjecture--only surmise and conjecture--that, had the message been sent, there would have been an acceptance of the proposal which it made. To give compensatory damages, there must be actual loss, and the court must see that it comes from the wrongful act of the defendant; that, but for such act, there would not have been a loss. "Compensatory damages are such as measure the actual loss, and are given as amends therefor." Talbott v. Railroad, 42 W.Va. 560, 26 S.E. 311. Therefore we must be able to say with legal certainty that, if that telegram had been delivered, there would have been an actual...