Fields v. Western Union Telegraph Co.

• Decision Date: 23 December 1913
• Citation: 137 P. 200,68 Or. 209
• Parties: FIELDS v. WESTERN UNION TELEGRAPH CO.
• Court: Oregon Supreme Court

137 P. 200

68 Or. 209

FIELDS v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Oregon

December 23, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by George T. Fields against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hall S. Lusk, of Portland (Dolph, Mallory, Simon &amp Gearin, of Portland, on the brief), for appellant. Lester W Humphreys, of Portland, for respondent.

RAMSEY J.

This is an action by which the plaintiff seeks to recover damages resulting to him from the negligent acts of the defendant. The plaintiff is a traveling salesman of the Edward Thompson Company, of Northport, Long Island, N.Y. On the 27th day of May, 1910, the plaintiff, being out of funds to defray his traveling expenses, and being in Portland, and desiring to go to Tillamook and the Columbia river country next, on the business of selling books in which he was engaged, wrote the following telegram and delivered it to the defendant, to transmit over its wires, to said Edward Thompson Company at Northport, Long Island, N. Y.: "Edward Thompson Company, Northport, Long Island, N.Y. Wire me $100.00. Charge same to weekly advance. Will make Tillamook and Columbia river country next. [Signed] George T. Fields Hotel Calumet, Portland, Oregon." The plaintiff paid to the defendant, at the time he delivered said message to said company, the defendant's charges, in full, for transmitting said message by wire to the Edward Thompson Company, and the defendant received said message and agreed to transmit it. At the time that said message was delivered to the defendant, the plaintiff was staying temporarily at said Hotel Calumet, Portland, Or. The plaintiff at the time he delivered said message to the defendant, registered his name and address with the defendant. When said message was so delivered to the defendant, the receiving clerk of the defendant drew a pencil line around the words "Hotel Calumet, Portland, Oregon," without the knowledge or consent of the plaintiff, and, by reason of said pencil lines being so drawn around said words, said words were not sent by the defendant as a part of said message. The omitted words showed the Portland address of the plaintiff at which he expected to receive the answer to said message, but the defendant failed to transmit said words. The plaintiff failed to receive any answer to said message, and called frequently at the office of the defendant, and there inquired of the defendant whether any answer to his said message had been received by the defendant, and was informed by the defendant that no answer had been received. The Edward Thompson Company immediately answered said message, granting the plaintiff's request for a remittance of $100; but the defendant failed to deliver said message to the plaintiff. The plaintiff called several times and asked the defendant for said message, but the defendant failed to deliver it to him, although the defendant had received said answer. The complaint charges the defendant with negligence in not delivering said message from said Edward Thompson Company to the plaintiff, granting his request for $100 for expense money, etc., and claims damages in the sum of $250. The court below tried the case, without a jury, and made findings and entered judgment in favor of the plaintiff for $110 as damages. The defendant appeals, and assigns several alleged errors, but, on the hearing, argued only the assignments that the court erred in its findings of fact and law. We will regard the points not argued as waived.

1. The first question for determination is as to the sufficiency of the evidence to support the findings of fact made by the trial court. The court's findings of fact stand as the verdict of a jury, and can be set aside only for the reasons for which the verdict of a jury can be set aside. Since the recent amendment of our Constitution, the verdict of a jury can be set aside only when the court can say affirmatively that there is no evidence to support it. See article 7, § 3, of the Constitution.

Of course, evidence to support a verdict, or the trial court's findings of fact, must cover all the material issues with reference to which the party, in whose favor the verdict or findings were rendered, had the burden of proof. We are unable to say that there is no evidence to support the court's findings of fact, and hence they will be sustained.

2. The main question for decision is whether the court's conclusion of law, that the plaintiff is entitled to a judgment for $110 and costs and disbursements, is justified by the findings of fact. The plaintiff delivered to the defendant a message to be transmitted to the Edward Thompson Company in New York asking that company to wire him $100 for traveling expenses, stating that he would make Tillamook and the Columbia river country next, etc. The defendant failed to transmit a portion of said message, but the company received it, and immediately answered it, granting the request for the funds. The answer was received by the defendant, but the latter negligently failed to deliver it to the plaintiff, and he was unable to continue his business as a traveling salesman for the period of 11 days. The trial court found that, by the defendant's negligence, the plaintiff was prevented from pursuing his usual occupation for the period of 11 days; that the reasonable value of the plaintiff's time and his customary earnings were at least $10 per day; and that he was damaged in the sum of $110 by the defendant's negligence.

Counsel for the defendant contends that the plaintiff's claim for damages for the 11 days' loss of time is too remote and uncertain to be allowed, and that his demand for what he claims that he could have made in commissions during the 11 days' time that he lost, through the negligence of the defendant, is a claim to recover speculative profits, and cannot be sustained. This involves one of the vexed questions of the law, upon which the decisions of the courts are not in harmony.

There are many cases that hold that the loss of anticipated profits cannot, as a general rule, be recovered as damages; but the later decisions are more favorable, than the older ones, to the recovery for the loss of expected gains.

In 8 Am. & Eng. Ency. Law (2d Ed.) pp. 616-618, it is said: "A statement of frequent occurrence, therefore is that prospective or anticipated profits are not recoverable, on account of their inherently uncertain and conjectural character. It has been said in this connection, that the earlier cases, both in England and America, generally concurred in the...