Fitch v. Western Union Telegraph Company
| Decision Date | 28 June 1910 |
| Citation | 130 S.W. 44,150 Mo.App. 149 |
| Parties | C. E. FITCH, Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
Judgment affirmed.
John D Rippey and L. C. Kingsland for appellant.
(1) In an action against a telegraph company for negligence in failure to deliver a telegraph message, the addressee is entitled to recover all damages for loss of time and traveling expenses which result to him by reason of a failure to deliver the message. Bliss v. Telegraph Co., 30 Mo.App. 103; McCarty v. Telegraph Co., 116 Mo.App 441; See v. Telegraph Co., 51 Mo.App. 575. (2) It is negligence on the part of a telegraph company if it fails to use ordinary care to deliver a telegraph message to the addressee as nearly immediately as practicable. Bliss v. Telegraph Co., 30 Mo.App. 103. (3) Where a message is delivered to a telegraph company for immediate transmission, and the sendee inquires at the receiving office, after the message has actually been received at said office, and the company's agent willfully misrepresents the fact, stating that no message had been received for sendee, the telegraph company is liable for all damages resulting to sendee, by reason of the willful wrong on the part of the company's agent. (4) If a telegraph company receiving a message for transmission fails to deliver the message to the addressee it is liable for the price paid for the message if it breaches its contract to deliver the message. Primrose v. Telegraph Co., 154 U.S. 1. (5) In an action against a telegraph company for breach of contract for failure to deliver a telegraph message, the party suffering loss is entitled to receive such damages as flow naturally from such breach of contract, or which might reasonably be supposed to be in contemplation of the parties to the contract at the time such contract was made. Primrose v. Telegraph Co., 154 U.S. 1. (6) If a telegraph message shows on its face that a business transaction is in contemplation the telegraph company will be deemed to be charged with knowledge that substantial damages will result from its non-delivery, which damages are recoverable by the party to the contract suffering loss. Telegraph Cable Co. v. Lathrop, 131 Ill. 575; Young v. Telegraph Co., 9 L.R.A. 669; McCarthy v. Telegraph Co., 116 Mo.App. 441. (7) Or, if the telegraph company is informed at the time the message is given for transmission that certain damages will result from its non-delivery, or if such knowledge comes to it within time for it to perform its contract, the telegraph company will be liable for such damages if they occur by reason of the fact that it willfully or intentionally breaches its contract to deliver the message.
Ferriss, Zumbalen & Ferriss for respondent.
(1) Appellant's abstract of the record fails to show that the evidence, instructions given and refused, motion for new trial, and action of the court thereon, were preserved in the bill of exceptions; consequently this court can examine only those questions appearing on the record proper. Berkley v. Cobbs, 13 Mo.App. 502; Story & Camp v. Ragsdale, 30 Mo.App. 196; McNeil v. Insurance Co., 30 Mo.App. 306; Bank v. Finks, 40 Mo.App. 367; Hohstahdt v. Daggs, 49 Mo.App. 157; Turley v. Barnes, 131 Mo. 548; City v. Milligan, 18 Mo. 182; State v. Sheehan, 25 Mo. 565; Hoffman v. Trust Co., 151 Mo. 520. (2) The finding on the facts of the lower court when sitting as a jury, is conclusive on this court. The instructions given and refused will be reviewed only for the purpose of determining whether the lower court tried the case on the correct theory. Butler Co. v. Bank, 143 Mo. 13; Smith v. Royse, 165 Mo. 654; Trust Co. v. McMillan, 188 Mo. 547; Nelson v. Railroad, 66 Mo.App. 647; Rice-Stix & Co. v. Harper, 74 Mo.App. 383; Iron Co. v. Power Co., 109 Mo.App. 353. (3) The instructions requested by plaintiff submitted the case on the wrong issue, ignored the vital issues in the case and were confused and indefinite. (4) The instructions given by the court were correct, because (a) in actions for special damages against a telegraph company for failure to deliver a telegram, only such damages are recoverable as were in the contemplation of the parties, at the time the contract was made, as the probable result of a failure to deliver the message. Hadley v. Baxendale, 9 Exch. 341; Landsberger v. Telegraph Co., 32 Barb. 530; Baldwin v. Telegraph Co., 45 N.Y. 744; Candee v. Telegraph Co., 34 Wis. 471; Ferguson Bros. v. Telegraph Co., 178 Pa. 377; Primrose v. Union Tel. Co., 154 U.S. 1; Smith v. Telegraph Co., 83 Ky. 104; Abels v. Telegraph Co., 37 Mo.App. 554; Melson v. Telegraph Co., 72 Mo.App. 111; Hughes v. Telegraph Co., 79 Mo.App. 133. And (b) the damages claimed must be the direct and proximate result of the alleged failure in delivery of the telegram. Telegraph Co. v. Bates, 93 Ga. 352; Baldwin v. Telegraph Co., 45 N.Y. 744; Hosiery Mills v. Telegraph Co., 51 S.E. 290; Lumber Co. v. Telegraph Co., 52 W.Va. 410; Telegraph Co. v. Watson, 94 Ga. 202. (5) Plaintiff is not entitled on this record to recover the seventy-five cents received by defendant for transmitting the message.
--This is a suit for damages on account of an alleged breach of contract for the transmission and delivery of a telegraph message. After hearing the proof, the court gave judgment against defendant for nominal damages only and plaintiff prosecutes the appeal.
It appears plaintiff was at Twin Falls, Idaho, negotiating as to the establishment of a mill at that point and had written a letter to J. C. McCaskill of St. Louis, Missouri, to telegraph him about some business matter. As to the contents of the letter mentioned nothing appears in the evidence and with it we are not concerned. It may be said also that the telegram itself did not disclose on its face that it pertained to a business matter any more than it did to some other. McCaskill called upon the agent of defendant telegraph company and delivered to him the following message for transmission on April 16, 1907:
The telegram was marked collect from the sendee at the instance of McCaskill, the sender who was acting as agent for Fitch, the sendee, in the transaction. McCaskill testified that at the time of delivering the message to defendant's agent he informed him it was very important the message should be rushed through but did not mention the fact that it pertained to a business matter of any kind. It appears plaintiff was at Twin Falls, Idaho, where he called at defendant's office on the evening of the same day and inquired if there were a message for him. The man in charge of the office informed him there was none. On the following day, defendant's agent at Twin Falls reported to its agent at St. Louis that it was unable to deliver the message to plaintiff and instructed the St. Louis agent to collect the price for its transmission from the sender, McCaskill. Upon receiving such instructions, defendant's agent in St. Louis called upon McCaskill, notified him the message was undelivered and insisted that he should pay the charges. McCaskill says he instructed defendant's agent at this time that he knew plaintiff Fitch was at Twin Falls, Idaho, and the message could be delivered to him. He says, too, that in this conversation he informed defendant's agent the message pertained to an important business matter and that defendant should make further efforts to deliver it for that reason.
We infer from the testimony that he did not pay the price for sending it until after a second call was made upon him the day following. Plaintiff states that not having received the expected telegram he made arrangements to come to St. Louis forthwith and called a second time at defendant's office at Twin Falls on the evening of April 18th where he inquired again to the same effect as before but was informed no such message had been received.
The suit proceeds as for a breach of defendant's contractual duty and special damages are sought to be recovered. The items of damage sued for are the amounts expended by plaintiff in paying his railroad fare from Twin Falls, Idaho, to St. Louis and return, together with sleeping and dining car expenditures while en route, and five dollars a day for the time necessarily consumed in making the trips. It is shown that had the message been delivered, the trip to St. Louis would not have been made. The court gave judgment for nominal damages only, for the breach of the contract, on the theory that defendant could not be required to respond for special damages in the absence of proof tending to show such damages were reasonably within the contemplation of the parties at the time the contract for transmitting the message was entered into.
On appeal, plaintiff's argument for a reversal of the judgment is two-fold. It is urged, first, the message on its face sufficiently apprised defendant of the fact that it pertained to an important business transaction and, second that if it did not, the fact was communicated to defendant by McCaskill, the sender, on the day after the contract for its transmission was made. It may be said at the outset that the suit proceeds as for a breach of the contract and not in tort for the wrong. The form the action has assumed is important only, however, in so far as it relates to the rules by which a recovery may be measured, for notwithstanding the form of the remedy and the measure of damages thereon, the defendant's obligation to exercise ordinary care and reasonable promptness in transmitting and...
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