Harper v. Western Union Telegraph Co.

• Decision Date: 14 November 1925
• Docket Number: 11849.
• Citation: 130 S.E. 119,133 S.C. 55
• Parties: HARPER ET AL. v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

130 S.E. 119

133 S.C. 55

HARPER ET AL. v. WESTERN UNION TELEGRAPH CO.

No. 11849.

Supreme Court of South Carolina

November 14, 1925

Appeal from Common Pleas Circuit Court of Hampton County; John S Wilson, Judge.

Action by C. Bryan Harper and another, trading as Harper & Lawton against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded with directions for nonsuit.

The following are defendant's exceptions:

I. It is respectfully submitted that his honor erred in refusing defendant's motion for a nonsuit upon the following ground:

(1) Because the damage sustained by plaintiffs, if any, was not the direct and proximate result of the negligence complained of on the part of the defendant, but was result of plaintiffs' own voluntary act:

(a) Because the evidence shows that the plaintiffs discovered the mistake in the telegram before the potatoes had been delivered to the Blalock Fruit & Produce Company, and while plaintiffs still had the right to control the disposition of same, and the action of the plaintiffs in instructing the bank to reduce the amount of the draft was a voluntary act on their part, and, if any loss was sustained thereby, the defendant cannot be held responsible therefor.

(b) Because it appears from the evidence that the plaintiffs used the defendant company as a means of communication with the Blalock Fruit & Produce Company, which, as a matter of law, does not make the defendant the agent of the plaintiffs, and the said plaintiffs were not bound to the Blalock Fruit & Produce Company for the result of the message by the terms of the transmitted telegram in which the defendant had negligently changed the price quotation.

(c) Because the plaintiffs were not bound by the terms of the telegram as delivered to the Blalock Fruit & Produce Company, but were only bound by the terms of the correct telegram filed with the defendant, and the loss, if any, which they sustained was caused solely by their voluntary action after full knowledge of the error made in the transmission of the telegram, whereas they might have canceled the transaction or made other disposition of the carload of potatoes.

(2) It is respectfully submitted that the presiding judge erred in directing a verdict for the plaintiffs because the delivery to the Blalock Fruit & Produce Company of the erroneous telegram did not create or give rise to a valid or enforceable contract between the said Blalock Fruit & Produce Company and the plaintiffs, and the plaintiffs were under no legal duty to deliver the potatoes in question to the Blalock Fruit & Produce Company at the erroneous price quoted in said telegram, to wit, $2.25 per hundred, but on the contrary they should have sold the potatoes on the market at the best price obtainable.

(3) It is respectfully submitted that the court erred in adopting as the measure of damages the difference between the price at which the plaintiff was willing and expected to sell the potatoes and the erroneous price quoted in the telegram delivered to the sendee.

(4) It is respectfully submitted that his honor erred in directing a verdict for the plaintiffs, because the undisputed evidence shows that the loss, if any, sustained by the plaintiffs was not on account of the mistake made in the telegram, but was due to plaintiffs' own voluntary act in instructing the bank to reduce the amount of the draft after both plaintiffs and the Blalock Fruit & Produce Company had been advised of the mistake made in the transmission of the telegram.

(5) It is respectfully submitted that his honor erred in directing a verdict for the plaintiffs when it appeared from the undisputed evidence that the alleged loss or damage to the plaintiffs of $167.64 was not the proximate result of the error made in the transmission of the telegram, but was due to plaintiffs' own voluntary act after both they and the Blalock Fruit & Produce Company had been advised of the error made.

Gary, C.J., and Watts, J., dissenting.

Francis R. Stark, of New York City, and Nelson & Mullins, of Columbia, for appellant.

W. D. Connor, of Hampton, for respondents.

COTHRAN J.

This is an action for $167.54 damages alleged to have been sustained by the plaintiffs as a result of the incorrect transmission of a telegram sent by the plaintiffs at Estill, S. C., to a produce company at Richmond, Va., relating to a contemplated sale by the plaintiffs to the produce company of a carload of sweet potatoes.

The facts of the case are as follows: On February 20, 1924, the produce company at Richmond wired the plaintiffs at Estill asking for a quotation upon a certain kind of potatoes. In reply the plaintiffs wired quoting the potatoes at $2.75 per cwt. f. o. b. Richmond. The telegram was delivered reading $2.25 per cwt. The produce company wired. accepting the offer, and ordering the potatoes. The plaintiffs shipped 33,528 pounds, order notify, and drew upon the produce company with bill of lading attached for the price at $2.75. The produce company replied that the price as stated in the telegram was $2.25, and asked the plaintiffs to have the collecting bank reduce the draft accordingly. After the passing of certain telegrams between the parties, the plaintiffs yielded to the demand of the produce company, and instructed the bank to reduce the amount of the draft, upon the basis of $2.25, and deliver the bill of lading to the produce company. This was done, and the produce company secured delivery of the potatoes.

The reason assigned by the plaintiffs in their complaint for complying with the demand of the produce company is that the produce company "held the plaintiffs to the price of $2.25 per hundred pounds for said shipment," and "that plaintiffs, believing that they were under contract to deliver said potatoes to said consignee under the terms of the telegram as received by said consignee, in connection with their acceptance, settled with said consignee at the price of $2.25 per hundred weight."

It is also alleged in the complaint that the potatoes at the time were worth $2.75 per cwt. delivered at Richmond. A witness for the plaintiffs testified that at the time the shipment in question arrived in Richmond potatoes of the character of those shipped by the plaintiffs were worth on the market from $2.75 to $3 per cwt., and that he had paid on the very dates $3.25 per cwt. In the "Agreed Statement of Facts," which the parties by stipulation used upon the trial in the circuit court, this statement occurs:

"That these potatoes were worth $2.75 per hundred pounds delivered at Richmond, on the date of the delivery and date of sale; that the market price at Richmond at said times was $2.75 to $3 per hundred pounds."

And in the printed argument of counsel for the respondents the same fact is conceded.

The case was tried before the Hon. John S. Wilson, Circuit Judge, and a jury. At the close of the evidence for the plaintiffs, the defendant's attorneys made a motion for a nonsuit upon grounds which will be reported. The motion was refused, and thereupon the presiding judge, sua sponte, instructed the jury to return a verdict for the plaintiffs for the amount claimed, $167.64, which was 50 cents per hundred pounds on 33,528 pounds.

The defendant has appealed from the judgment entered upon this verdict upon exceptions which fairly raise the questions hereinafter discussed and disposed of.

It is conceded that the telegraph company was guilty of negligence in incorrectly transmitting and delivering the message containing the proposal of the plaintiffs. The telegraph company is liable, of course, for such damages as resulted to the plaintiffs, proximately, as the law requires, from such negligent failure. The question, therefore, for determination is whether the plaintiffs have offered any evidence tending to establish such damages.

The case of Eureka Cotton Mills v. Tel. Co., 88 S.C. 498, 70 S.E. 1040, Ann. Cas. 1912C, 1273, establishes the doctrine, in accord with the English rule, that in the transmission of a message the telegraph company cannot be considered as the agent of the sender, but must be considered as an independent contractor, a common carrier of intelligence for hire, and is liable to both the sender and the addressee for the breach of its duty resulting in damage. This effectually disposes of the assumption upon which the sellers acted in this case that, as the telegraph company was the agent of the sellers, they were bound by the acceptance of the buyers to carry out the proposed terms contained in the telegram erroneously transmitted. In Watson v. Paschall, 93 S.C. 537, 77 S.E. 291, following the Eureka Case, the court held:

"The defendants, of course, were bound by the telegram as they sent it, and not as it was delivered."

The plaintiffs, therefore, in yieding to the demand of the produce company to comply with the terms of the proposal as contained in the erroneously transmitted telegram, did what they were under no legal obligation whatever to do. The telegraph company not being the agent of the plaintiffs, the minds of the contracting parties had not met upon the proposition for a sale at $2.25, and the plaintiffs had a perfect right to decline to deliver at that price. The produce company was alike free to decline a sale at $2.75, and, if it did so, the course of the plaintiffs was clear to dispose of the potatoes at the best price obtainable.

The allegations of the compaint, the stipulations in the agreed statement of facts for the trial below, the testimony of the witnesses for the plaintiffs, and the printed argument of counsel for the plaintiffs, show that the market value of potatoes of the kind shipped in Richmond, on the very day of their delivery to...