Jackson v. Western Union Telgraph Company
| Citation | 156 S.W. 801,174 Mo.App. 70 |
| Parties | WILLIAM JACKSON, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Decision Date | 06 May 1913 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
Judgment affirmed.
Ferriss Zumbalen & Ferriss for appellant.
(1) Evidence of what might, should or could have taken place under conditions which never existed is too uncertain and speculative to constitute the basis of a finding of damages. Rimel v. Hays, 83 Mo. 200; Rutledge v Railroad, 110 Mo. 312; Reynolds v. Telegraph Co., 81 Mo.App. 223; Baldwin v. Telegraph Co., 45 N.Y. 744; Hosiery Mills v. Tel. Co., 123 Ga. 216; Lumber Co. v. Telegraph Co., 52 W.Va. 410; Tanning Ext. Co. v. Railroad, 143 N.C. 376; Smith v. Tel. Co., 83 Ky. 104; Hughes v. Tel. Co., 114 N.C. 70; Telegraph Co. v. Watson, 92 Ga. 202. The needed certainty cannot be supplied by testimony as to "market value" where as here, the facts show that there was not and could not be any "market value," within the accepted meaning of that phrase. 19 Am. & Eng. Ency. 1153. (2) It is an agent's duty to exercise the utmost good faith and fidelity in dealing with his principal; to obey the latter's instructions, to advise him of facts relevant to the matters in hand, to display reasonable care and diligence as well as ordinary intelligence in handling his business. 31 Cyc. 1456; 1 Am. & Eng. Ency. 1063, 1069, 1071; Holmes v. Cathcart, 60 L. R. A. 734. Where defendant's fault or negligence is the remote cause and plaintiff's or his agent's or a third party's subsequent fault or negligence or some efficient intervening act is the direct and proximate cause of plaintiff's loss, the defendant is not liable. 37 Cyc. 1757; Logan v. Railroad, 96 Mo.App. 465; Reynolds v. Telegraph Co., 81 Mo.App. 223; Commission Co. v. Telegraph Co., 101 Mo.App. 500; Tel. Co. v. Briscoe, 18 Ind.App. 22; Higdon v. Tel. Co., 132 N.C. 726; Lowery v. Tel. Co., 60 N.Y. 198; Tel. Co. v. Cornwell, 2 Colo.App. 491. (3) An instruction which assumes to direct a verdict for plaintiff must include all the elements in the case essential to his right of recovery. Error in plaintiff's instructions is not cured by correct instructions given for defendant, where the two sets are inconsistent. Sheperd v. Transit Co., 189 Mo. 362; Brokerage Co. v. Gates, 190 Mo. 391; State v. Helton, 234 Mo. 559; Hamilton v. Railroad, 114 Mo.App. 504; Smith v. Railroad, 126 Mo.App. 120; Haynor v. Water Co., 129 Mo.App. 691; Ross v. Railroad, 132 Mo.App. 473; Russell v. Poor, 133 Mo.App. 723; Kelly v. United Ry. Co., 153 Mo.App. 114.
Nagel & Kirby and E. G. Curtis for respondent.
(1) Proof of a mistake in a telegram makes a prima facie case of negligence on the part of the telegraph company, and in the absence of any proof to the contrary, the only question then open is that of the measure of damages. Reed v. Telegraph Co., 135 Mo. 661; Hughes v. Telegraph Co., 79 Mo.App. 133. (2) Market value may be established by proof of sales of the same character of property at or about the time of the sale in question and also by expert testimony. Reilly v. Cullen, 101 Mo.App. 32; Johnson-Brinkman Com. Co. v. Wabash, 64 Mo.App. 590; Cliquot v. U.S. 3 Wall. 114; Theiss v. Weiss, 166 Pa. 9; Douglas v. Merceles, 25 N.J.Eq. 144; Parmentier v. Fitzpatrick, 135 N.Y. 190. (3) A single instruction need not cover the whole case, but all the instructions should be read together and even an omission in plaintiff's instructions may be cured by defendant's. Lange v. Railroad, 208 Mo. 458; Anderson v. Union Terminal Railway, 161 Mo. 411; Meadows v. Life Ins. Co., 129 Mo. 76; Hughes v. Railroad, 127 Mo. 447; Owens v. Railway, 95 Mo. 169; McCloskey v. United Railways, 162 Mo.App. 232; Hales v. Raines, 146 Mo.App. 232; Reding v. Reding, 143 Mo.App. 659; Shores v. City, 134 Mo.App. 9; Shanahan v. Transit Co., 109 Mo.App. 228.
--This is an action for damages alleged to have been suffered by plaintiff by reason of the negligent transmission by defendant of a telegram from St. Louis, Missouri, to Wibaux, Montana. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is a dealer in wool in the city of St. Louis, and one C. M. Dinsdale, of Wibaux Montana, was his agent for the purchase of wool, i. e., to contract in advance with wool growers for their crops of wool to be clipped and delivered later. On or about February 28, 1909, plaintiff received from his said agent, at Wibaux, a telegram as follows:
In reply to this message plaintiff on March 1, 1909, wrote, and delivered to the defendant, the following telegram for transmission to the agent at Wibaux, viz.:
This telegram as actually transmitted, and delivered to the agent at Wibaux, March 2, 1909, was as follows:
The evidence disclosed that, relying upon this telegram, plaintiff's agent at Wibaux, Montana, contracted for the purchase by plaintiff of four crops of wool on said March 2, 1909, at twenty-two cents per pound. It appears that there was no regular exchange or board of trade at or near Wibaux, Montana, where quotations of the prices of wool were made, but that wool buyers were in the habit of meeting there about the time of the year that this transaction took place, for the purpose of negotiating with wool growers in that vicinity for the purchase of their wool; the custom being to purchase the entire crop of wool while the same was growing upon the backs of the sheep, for future delivery when ready to be clipped. There was evidence that market conditions in the East, and instructions from dealers there, largely govern the action of the wool buyers, who purchase as agents for such dealers.
There was testimony of so-called experts, familiar with the prices of wool at the time in question, that the market value of wool at Wibaux, Montana, on March 2, 1909, was from twenty to twenty-one cents per pound. Plaintiff's testimony showed that sales of wool of the character here in question were made on March 4, 1909, at twenty-one cents per pound, and on March 5, 1909, at twenty and one-eighth cents per pound; and that two or three days prior to March 2d, wool was sold at twenty cents per pound. From the evidence, there appears to be no standard by which to arrive at the market value of wool, at the time and place, other than by the prices at which sales were there made at or about this time. It appears that the buyers negotiated or dickered with the owners, and the price paid for any crop depended upon the bargain made; some owners accepting one price, and others holding out for a time for a higher figure.
The evidence showed that plaintiff did not suffer an actual loss on the lot of wool purchased at twenty-two cents per pound; that is to say, plaintiff sold the wool at some profit. The suit proceeds upon the theory that plaintiff is entitled to recover the additional profit of one cent per pound which he would have made had the wool been purchased at twenty-one cents per pound instead of twenty-two cents.
The defendant offered no evidence. The jury returned a verdict for plaintiff for $ 966; for, although plaintiff's evidence went to show that, in reliance upon the telegram, 97,762 pounds of wool had been purchased by the agent at twenty-two cents per pound, plaintiff nevertheless in his petition prayed judgment for only $ 966.
The only assignments of error requiring consideration pertain to the overruling of a peremptory instruction offered by defendant, to the effect that plaintiff could recover only nominal damages, and the giving of instructions requested by plaintiff.
I. It does not appear to be disputed that proof of defendant's error in transmitting the telegram makes out a prima facie case of negligence on its part. [Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S.W. 904, and cases cited; Hughes v. Western Union Telegraph Co., 79 Mo.App. 133.] And as defendant offered no explanation, the only question remaining open pertained to the measure of damages. Appellant insists that the instruction offered by it, to the effect that plaintiff could recover only nominal damages, should have been given.
As appellant's argument proceeds, plaintiff failed to make a case entitling him to anything more than nominal damages, for the reason, as is said, that plaintiff's case, with respect to actual damages suffered, rests purely upon conjecture and speculation. It is urged that if twenty-two cents per pound was the lowest price at which the wool could have been purchased, then plaintiff sustained no loss in the premises; for in that event, even had the message been correctly transmitted, the agent would not have been able to purchase any wool. And appellant says that plaintiff cannot recover upon the theory that his agent might have purchased at twenty-one cents but for the mistake in sending the telegram, for the reason that what the agent might have done is purely a matter of speculation; and furthermore that the agent's telegram to the plaintiff above set out, shows...
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