Hays v. Western Union Tel. Co.

• Citation: 150 S.W.2d 511
• Decision Date: 03 April 1941
• Docket Number: No. 6203.,6203.
• Court: Court of Appeal of Missouri (US)
• Parties: J.O. HAYS, RESPONDENT, v. WESTERN UNION TELEGRAPH COMPANY, A CORPORATION, APPELLANT.

150 S.W. 511

J.O. HAYS, RESPONDENT, v. WESTERN UNION TELEGRAPH COMPANY, A CORPORATION, APPELLANT.

No. 6203.

Springfield Court of Appeals, Missouri.

April 3, 1941.

Appeal from the Circuit Court of Laclede County. — Hon. William E. Barton, Judge.

AFFIRMED.

Francis R. Stark, Bradshaw & Fields, J.N. Brown and Frank B. Williams for appellant.

(1) The petition does not sound in contract, but sounds in tort, and is bottomed solely on Missouri statute. Sec. 4929, R.S. Mo. 1929; Markel v. Western Union Tel. Co., 19 Mo. App. 80; Newman v. Western Union Tel. Co., 54 Mo. App. 434, 445-446; Western Union Tel. Co. v. Burris, 179 Fed. 92; Reed v. Western Union Tel. Co., 135 Mo. 661, 662; Barnett v. Western Union Tel. Co. (Mo. App.), 287 S.W. 1064. (2) The statute provides that telegraph companies shall be liable for special damages occasioned by the failure or negligence of their operators or servants in transmitting or delivering dispatches. The damages allowed to the sendee being special, the sendee must both plead and prove special damages as distinguished from general damages. Sec. 4929, R.S. Mo. 1929; Markel v. Western Union Tel. Co., 19 Mo. App. 80, 86; Levy v. Western Union Tel. Co., 35 Mo. App. 170; Barrett v. Western Union Tel. Co., 42 Mo. App. 452; Barnett v. Western Union Tel. Co., 287 S.W. 1064, l.c. 1068; Hughes v. Western Union Tel. Co., 79 Mo. App. 133. (3) Special damages are those which the law does not imply, and are such as naturally, but not necessarily, flow from the negligence complained of. They must be pleaded with particularity and in this case would be the difference between what the number one rabbits actually cost plaintiff delivered, and what he actually sold them for delivered. Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260, 261; State to Use of McCracken v. Blackman, 51 Mo. 319, 321; Barrett v. Western Union, 42 Mo. App. 542, 550; Brown v. Porter, 63 Fed. 62, 64, 26 L.R.A. 167; McMahon v. K.C. Rys. Co., 233 S.W. 64, 65; Hibbler v. K.C. Rys. Co., 237 S.W. 1014; Brown v. Hannibal & St. J. Ry. Co., 99 Mo. 310, 12 S.W. 655; Hind v. Western Union Tel. Co., 278 Fed. 730; Hall v. Coal Co., 260 Mo. 351; Simon v. S.S. Kresge Co. (Mo. App.), 103 S.W. (2d) 523; 62 C.J. 200, sec. 235; Walquist v. K.C. Rys. Co. (Mo.), 237 S.W. 493; Hardesty v. Schaefer (Mo. App.), 139 S.W. (2d) 1031. (4) Instead of suing for special damages, plaintiff has sued for the difference between the price stated in the telegram as delivered and the price stated in the telegram as filed. Such difference is merely loss of a profit hoped for and is not in any sense special damage and is not recoverable. Kerns & Lorton v. Western Union Tel. Co., 174 Mo. App. 435; Reynolds v. Western Union Tel. Co., 81 Mo. App. 223; Security Mortgage Co. v. Western Union Tel. Co. (Ark.), 216 S.W. 10; Collier v. Domino Macaroni Mfg. Co., 215 Mo. App. 345, 248 S.W. 981; 62 C.J. 236, 237, 252; Western Union Tel. Co. v. Spivey (Tex.), 83 S.W. 364; Jackson v. Western Union Tel. Co., 174 Mo. App. 435, 156 S.W. 801; Mickelwait v. Western Union Tel. Co. (Iowa), 84 N.W. 1036. (5) Proof of special damages is not admissible under plaintiff's petition because the petition does not plead special damages by stating facts showing that the number one rabbits cost plaintiff, delivered, more than he received for them delivered. Brown v. Hannibal & St. J. Ry. Co., 99 Mo. 310, 12 S.W. 655; Van Buskirk v. Quincy, O. & K.C. Ry. Co., 131 Mo. App. 357, 361, 362, 111 S.W. 832; McMahon v. K.C. Rys. Co., 233 S.W. 64; 1 Houts Mo. Pl. & Pr., secs. 94, 131; Hall v. Mfg. Coal & Coke Co., 260 Mo. 351, 370-372; Mayne v. K.C. Ry. Co., 287 Mo. 235, 243; Hibbler v. K.C. Rys. Co., 292 Mo. 14; Shafer v. Rec'rs. Met. St. Ry. Co., 192 Mo. App. 502, 503. (6) Where a plaintiff pleads in strictness in a justice court he is as much bound by his petition as though the action had been filed in the circuit court. Lyman v. Dale, 262 Mo. 353, 358; Stevens v. Bacher, 162 Mo. App. 284, 290; Usona Mfg. Co. v. Schubert-Christie Corp. (Mo. App.), 132 S.W. (2d) 1101; Connelly v. Parrish, 189 Mo. App. 1, l.c. 5; Strong v. Turner (Mo. App.), 122 S.W. (2d) 71. (7) The measure of damages laid down in plaintiff's instruction number 1 is vague and indefinite and is not supported by any evidence. Western Union Tel. Co. v. Shotter, 71 Ga. 760, 768. (8) Appellant's request for directed verdict should have been granted because plaintiff's petition does not state facts sufficient to constitute a cause of action and the verdict and judgment are without support. Alisky v. Bird et al., 63 S.W. (2d) 817, 819; Daniel & Henry Co. v. F. Bierman Sons Metal & Rubber Co., 121 S.W. (2d) 200, 203; Western Union Tel. Co. v. Bell (Tex.), 59 S.W. 918; Mansur v. Linney, 162 Mo. App. 260, 144 S.W. 872; Secs. 2185, 2186, 4929, R.S. 1929. (9) The instructions, as a whole, are conflicting, contradictory and confusing and tended to confuse the jury on the issue of damages. (10) Cases distinguished. Lee v. Western Union Tel. Co., 51 Mo. App. 375; Coscarella v. Met. Life Ins. Co., 175 Mo. App. 130, 157 S.W. 873.

Phil M. Donnelly for respondent.

(1) The rule as to special damages that appellant seeks to invoke in this case does not apply. This case is brought under the statute (Sec. 5334, R.S. Mo. 1939), and the courts have construed what special damages as used in that section mean and refer to. Hughes v. Western Union Tel. Co., 79 Mo. App. 133, 141; Barnett v. Western Union Tel. Co., 287 S.W. 1064, 1068; Kerns & Lorton v. Western Union Tel. Co., 170 Mo. App. 649, 157 S.W. 109; Fitch v. Western Union Tel. Co., 150 Mo. App. 156, 130 S.W. 44; Tippin et al. v. Western Union Tel. Co., 185 S.W. 539, 543-544; Hughes v. W.U. Tel. Co., 79 Mo. App. 133; Smith v. W.U. Tel. Co., 57 Mo. App. 259; Fererro v. W.U. Tel. Co., 35 L.R.A. 548; State ex rel. Western Union Tel. Co. v. Pub. Serv. Comm., 264 S.W. 669, 673; McCarty et al. v. Western Union Tel. Co., 116 Mo. App. 441, 446; Reed v. Western Union Tel. Co., 135 Mo. 661. (2) Plaintiff proved the error in the telegram, Exhibit B, and, as this was a question of fact and the verdict of the jury was in favor of the plaintiff, this question is not before the court. Proof of error in transmitting a telegram makes out a prima facie case of negligence on the part of the telegraph company. Jackson v. Western Union Tel. Co., 174 Mo. App. 70. (3) Plaintiff's instruction number 1 is correct. Hughes v. Western Union Tel. Co., supra; Tippin v. Western Union Tel. Co., supra; McCarty v. Western Union Tel. Co., supra. (4) Appellant is in error that special damages have to be pleaded in a petition filed in a justice court. Lee v. Western Union Tel. Co., 51 Mo. App. 375, 379; Coscarella v. Metropolitan Life Ins. Co., 175 Mo. App. 130.

BLAIR, P.J.

This is an appeal from a judgment for plaintiff (respondent here) in the sum of $109, rendered by a jury against defendant (appellant here) in the Circuit Court of Laclede County, Missouri, on October 6, 1939. The case was originally filed in the justice court in said county, wherein judgment was rendered for the plaintiff. Defendant thereupon appealed to the circuit court.

The case was tried in the circuit court on the petition of plaintiff, filed in the justice court. Said petition alleged in substance that, on November 25, 1937 (which we see was Thursday), the Schumacher Commission Company of St. Louis, Missouri, delivered to defendant in St. Louis, Missouri, its telegram addressed to plaintiff at Phillipsburg, Missouri, reading as follows: "Pay You Two Twenty Five Buy Heavy" and that defendant negligently delivered to plaintiff a telegram reading: "Pay You Two Seventy Five Buy Heavy."

The petition further alleged that, relying on the price named in said telegram, as delivered to him, plaintiff purchased 218 dozen rabbits (to which such telegram is conceded to have related) to sell "for a market of $2.75 per dozen;" and that said Schumacher Commission Company thereafter refused to pay plaintiff more than $2.25 per dozen for said rabbits; and "that by reason of the defendant's negligence in copying, transmitting and delivering said message the plaintiff has been damaged in the sum of fifty cents per dozen on the rabbits purchased or a total of $109.00;" for which judgment in favor of plaintiff was afterwards rendered in the circuit court. Thereupon defendant appealed to this court.

The evidence tended to support the allegations of such petition. It showed that plaintiff sent a telegram to Schumacher Commission Company, asking when delivery of the rabbits was to be made and received an answer that delivery could be made on the following Monday and that the price, without stating such price, had been wired. Thereupon plaintiff secured a number of dozen of such rabbits and delivered same to said Commission Company in St. Louis on Monday morning following; but received therefor only $2.25 per dozen, instead of $2.75 per dozen, as stated in the telegram delivered by defendant, and said Commission Company refused to pay more than $2.25 per dozen therefor.

A number of errors are charged in defendant's motion for new trial, and preserved here for review. It is first contended that the trial court erred in overruling defendant's request for a directed verdict. No other assignment of error need be considered by us, if appellant is correct in this.

It is appellant's contention that the sufficiency of the petition as filed in the justice court must be judged by a petition filed in the circuit court, and, if such petition fails to state a cause of action, as so measured, plaintiff must fail.

It is difficult to understand appellant's contention in regard to such petition. We are unable to see how any petition could more fully allege all the facts required to be stated under Section 4929, Revised Statute Mo. 1929 (now section 5334, R.S. Mo. 1939), under which this action was commenced. Said petition, being based on said section and alleging all the facts required by said ...