In re Daniel

• Decision Date: 29 April 1884
• Docket Number: Case No. 4558.
• Parties: F. V. DANIEL v. THE W. U. TEL. CO.
• Court: Texas Supreme Court

61 Tex. 452

F. V. DANIEL

v.THE W. U. TEL. CO.

Case No. 4558.

Supreme Court of Texas.

Apr. 29, 1884.

APPEAL from Grayson. Tried below before the Hon. Joseph Bledsoe.

Suit by F. V. Daniel against the Western Union Telegraph Company for damages for negligently failing to deliver two messages delivered to it by the appellant at Sherman, Texas, for transmission to the city of New York, laying his actual damages at $2,181.25, which included $7.25, charges paid for transmitting messages. Gross and wilful negligence was alleged, and $2,500 exemplary damages claimed therefor.

Appellee demurred generally and specially. The general demurrer was waived, but the special exceptions were sustained, to which appellant excepted.

The appellee having admitted the demand for tolls, $7.25, judgment was rendered for that amount and costs against the company.

The first assigned error was as follows: “The court erred in sustaining the special exception to that portion of plaintiff's petition setting up and claiming damages for non-delivery of message of date November 18, 1879, copied in the petition, on the ground that the message was in cipher and unintelligible to any one unacquainted with the vernacular, and because the damages claimed could not have been understood to naturally flow from the failure to deliver.”

It was alleged that appellant was engaged in the business of buying and selling cotton in Sherman, Texas, and that his occupation was well known to appellee; that he was in New York in the fall of 1879 to remain during the cotton season; that on November 17, 1879, he learned of a disturbance in his office in Sherman, that would necessitate his return if not adjusted; that on that day he sent to his agent in Sherman a message as follows: “I have received your letter of the 12th instant--anxious about office affairs--please report approximate profits since 6th instant. What cotton have you to offer--Quote your market--Answer immediately--Don't wait night message.” That said agent, on November 18, 1879, at 10:30 in the forenoon, delivered to the appellee the following telegrams in cipher for appellant in New York: “Rogue, clover, office saluting now renovating rafting bodily approximate since civilian everything selfish sky about returning weather fine, all well;” the agent paying the bills, $3.20; which message was, when translated, which appellant understood how to do, as follows: “Telegram of yesterday received at 8 A. M. Office all right now--first rate in every respect--the profits since the 6th instant approximate $2,400--everything turns out well--you can use your discretion about returning--weather fine--all well.”

That appellant remained in New York at his place of business till late in the evening of the 18th, awaiting a reply to his message. That the message was never delivered to him in New York, and, receiving no reply to his message of the 17th, he left New York in the evening of the 18th and hastened home, which he would not have done had the message of his agent been delivered to him. That he was at the time doing a fine business in New York, which he left on account of the failure to receive the message, and returned home, thereby losing his time and being at the expense of returning home, the reasonable value of which was $500, whereby he was damaged in that amount, and also the amount paid in tolls, $3.30.

It was alleged that appellee well knew the business of a cotton broker, and that to make his business successful his contracts must be made with great celerity and accuracy; that appellee knew appellant, in all important telegrams, used cipher dispatches, and that he only used them in matters of importance, and that the cipher code was used by cotton brokers in transacting business of importance in their calling. That appellee knew messages in cipher as used by cotton brokers were of importance, and demanded prompt delivery.

The exception to which the first assignment related was as follows: “And for special exception to so much of plaintiff's petition as seeks a recovery of damages for failure to deliver message to plaintiff sent him on the 18th day of November, 1879.”

Defendant says that the same is insufficient in law, and that the dispatch was in cipher, as pleaded by plaintiff, and totally unintelligible to any one unacquainted with the vernacular, and no such damages as that claimed by plaintiff could be understood to naturally flow from a failure to deliver.

The second assignment of error was as follows: “The court erred in sustaining the special exception to that portion of plaintiff's petition setting up and claiming damages for the non-delivery of message of date December 15, 1879, copied in the petition, on the ground that the dispatch was in cipher and unintelligible to any one not acquainted with the key to said cipher, and because no such damage was contemplated at the time the defendant received the dispatch, and because the damages were remote and depended upon the action of a third party.”

The special exception to which this assignment related was as follows: “And for special exceptions to so much of plaintiff's petition as seeks a recovery of damages for failure to deliver message of date December 15, 1879, defendant says that the said dispatch was in cipher, as pleaded by plaintiff, and totally unintelligible to any one not having the key to said cipher; and further, that no such damage as that claimed by plaintiff was contemplated at the time it received said dispatch. The damages claimed are remote, and dependent upon the action of a third party.”

It was alleged that appellant delivered to the appellee, December 15, 1879, at 11:45 o'clock A. M., in Sherman, Texas, for transmission to appellant's agent in New York, the following message in cipher: “Pintle your blushes, bales account marmalade against it magazine if you gratitude await development must sell before market declines before apostle if fight oscillation,” which, when translated by appellant's agent, would have read as follows: “We will ship you five hundred and fifty bales of cotton on account. Sell for April delivery six hundred bales of cotton against it. You can sell at your discretion. If you think we shall be higher, await developments. Must sell before market declines below 13 1/2. If market dull and declining, sell immediately.”

That the message was not delivered to appellant's agent in New York until 9 o'clock A. M. of December 16, 1879, when it should have been delivered within business hours of December 15th.

That if it had been promptly delivered to appellant's agent, as appellee contracted it should be done, said agent could and would have...