Bierhaus v. The Western Union Telegraph Company

• Decision Date: 20 June 1893
• Docket Number: 643
• Parties: BIERHAUS ET AL. v. THE WESTERN UNION TELEGRAPH COMPANY
• Court: Indiana Appellate Court

34 N.E. 581

8 Ind.App. 246

BIERHAUS ET AL. v. THE WESTERN UNION TELEGRAPH COMPANY

No. 643

Court of Appeals of Indiana

June 20, 1893

Petition for a rehearing overruled Nov. 23, 1893.

From the Knox Circuit Court.

Judgment reversed, with instructions to sustain the motion for a new trial and the demurrer to the amended second paragraph of answer, and for further proceedings in accordance with this opinion.

W. A Cullop and C. B. Kessinger, for appellants.

J. S Pritchett, J. T. Beasley and A. B. Williams, for appellee.

OPINION

LOTZ, J.

The appellants sued the appellee to recover damages alleged to have been sustained on account of the negligence of the appellee in transmitting and delivering two telegraphic messages. Issue was joined; there was a trial by jury, and a verdict for appellants in the sum of fifty cents. The court rendered judgment in favor of appellants for fifty cents damages and fifty cents costs.

The errors assigned in this court are:

1. The overruling of the demurrer to the second paragraph of amended answer.

2. The motion for a new trial.

If the appellants, in the court below, secured a judgment for all the damages recoverable under the allegations of their complaint, then they can have no valid grievance to present to this court; for where the ultimate judgment is right, no intervening error will avail in securing a reversal. Morrison v. Kendall, 6 Ind.App. 212, 33 N.E. 370; Hamilton v. City of Shelbyville, 6 Ind.App. 538, 33 N.E. 1007.

The first question presented for our consideration is whether or not special damages can be recovered under the allegations of the complaint. If only nominal damages and the sum paid for the transmission of the messages can be recovered, then appellants have no cause for complaint, for the court below meted out to them all they were entitled to recover.

The substantial allegations in that paragraph of the complaint upon which the judgment is founded are as follows:

"That the appellants were wholesale grocers and jobbers, doing business in Vincennes, Indiana, by the name of E. Bierhaus & Sons, and did business throughout that part of the State of Indiana and the adjoining State of Illinois; that they employed traveling salesmen and clerks, who solicited business for them, and they had many customers at various places in both of said States; that on the 22d day of July, 1890, and long prior thereto, they did business at Mt. Carmel, Illinois; that among their customers at said place was one P. L. Davis, who was indebted to them in the sum of $ 161.15; that the appellee had a line of wire extending directly from Mt. Carmel to Vincennes, a distance of twenty miles, and was engaged in telegraphing for the public generally; that on said day appellants had in their employ one M. F. Hoskinson, a competent and practicing attorney at said Mt. Carmel, who was authorized by them to make collections for them; that on said day said Davis was the owner of a stock of goods and merchandise situate in said Mt. Carmel; that on said day, at about the hour of three o'clock P. M., said Hoskinson learned and ascertained that said Davis was disposing of his stock of merchandise and converting his property into money, and preparing to leave the State of Illinois without paying his debts, and especially appellants' debt, and said Hoskinson thereupon prepared and delivered to the appellee, at its office in Mt. Carmel, directed to appellants, in their firm name, at 3:30 o'clock P. M. on said day, for transmission, the following message: 'Have you claim against P. L. Davis? Answer how much.' That the defendant then and there accepted said message and agreed to transmit the same; that said message was for the use and benefit of appellants; that said telegram was not delivered to appellants until the hour of 8:05 o'clock P. M. of said 22d day of July, four hours and thirty-five minutes after the same was delivered to appellee for transmission; that as soon as appellants received said message, they at once prepared an answer thereto and delivered the same to appellee at its office in the city of Vincennes, addresses to said Hoskinson, and requested appellee to transmit the same to Mt. Carmel, which said answer was as follows: "Yes. One hundred and sixty-one dollars and fifteen cents." That appellee then and there accepted and agreed to transmit the same for and in consideration of the sum of twenty-five cents, which appellants then and there paid to appellee; that said telegram arrived at Mt. Carmel at 8:40 o'clock P. M. of said day, but was not delivered to said Hoskinson until 9 o'clock A. M. of the 23d day of July, 1890; that before said telegram was delivered, the said Davis had disposed of all his property and converted the same into money and left the State of Illinois, and appellants' debt could not then be collected from him; that said Hoskinson was a resident of the city of Mt. Carmel; that he was then the judge of the County Court of Wabash county, and his residence and place of business was well known, and he lived near appellee's office, and could have been easily found; that appellee well knew that Hoskinson was looking for an answer to his said message, as he went to appellee's office at 8 o'clock P. M. of said 22d day of July and inquired for an answer to his telegram; that immediately after said Davis sold his property, he departed from the State of Illinois for parts unknown to appellants, and has ever since kept his whereabouts unknown to them; that if said message from said Hoskinson to appellants had been promptly transmitted and delivered, appellants would have responded at once, and if the telegram to said Hoskinson had been promptly delivered, appellants could have made and collected their debt due them from said Davis; that on account of appellee's negligence in transmitting and delivering said messages, appellants have lost the debt due them from Davis, and they were prevented from collecting the same, and have lost said debt, together with a fee of $ 20 which they became liable to pay to said Hoskinson."

Appellee contends, that there is nothing in the first message to apprise it of the importance of speedy transmission; that there is nothing in either of them that acquaints it of the fact that appellants desired to institute legal proceedings; that the first message may have been no more than an idle inquiry, or that Hoskinson may have wanted the information for various purposes other than legal proceedings; that it was not notified of the importance of either message, and that, therefore, no special damages can be recovered.

The transmission of information from one point to another, by means of electrical wires, is of comparatively recent origin. When persons and corporations first began to transmit such messages for hire, the courts applied to them the same rules that governed common carriers. There is little analogy between the two methods of doing business. The carrier transports the thing itself, while in telegraphy the information is not actually transported at all, but is conveyed by means of a continuous wire and electrical appliances. A language is spoken at one end which an educated and skillful operator understands and interprets at the other. The tendency has been to apply old rules to new inventions and methods.

In the celebrated case of Hadley v. Baxendale, 9 Exch. 341, it appeared that the plaintiff, owner of a steam mill, broke a shaft, and desiring to have another made, left the broken shaft with the defendant, a carrier, to take to an engineer to serve as a model for a new one. At the time of making the contract, the defendant's clerk was informed that the mill was stopped and that the plaintiff desired the broken shaft sent immediately. Its delivery was delayed and the new shaft kept back, as a consequence. The plaintiff brought an action for a breach of the contract with the carrier, and claimed, as special damages, the loss of profits while the mill was kept idle. But because it was not made to appear that the defendant was informed that the want of the shaft was the only thing that was keeping the mill from operating, it was held that he could not be made responsible to the extent claimed.

The reason for this rule is that the defendant not having any knowledge of one element of the damages sought, at the time he made the contract to carry the shaft, he could not be held to have contracted with reference to such possible resultant consequences.

Until recently, American judicial authority has been generally agreed that the rule for the measure of damages here laid down governs in all cases for the failure to transmit and deliver telegraphic messages correctly and promptly. That is to say, the company which undertakes to transmit the message must be apprised by the sender, or by the terms of the message itself, of the probable resultant consequences flowing from the failure to transmit and deliver promptly; that unless it has knowledge of such probable consequences it can not be said to contract in reference thereto. W. U. Tel. Co. v. Hall, 124 U.S. 444, 31 L.Ed. 479, 8 S.Ct. 577; W. U. Tel. Co. v. Cooper, 71 Tex. 507, 10 Am. St. Rep. 772, note., 9 S.W. 598 Many cases might be cited in support of this rule. In some of the more recent decisions, the tendency is to relax this rule, and some courts have gone so far as to entirely overthrow it.

In Daugherty v. Am. Union Tel. Co., 75 Ala 168, 51 Am. Rep. 435, it was held that the company was liable for special damages for the nondelivery of a cipher message, the meaning of which was not known or explained to the company's agent. So it has also often been held that the company is liable for all proximate damages where the message is couched in language the meaning of which is...