Johnson v. Western Union Tel. Co.

• Decision Date: 22 April 1901
• Court: Mississippi Supreme Court
• Parties: ELBERT A. JOHNSON v. WESTERN UNION TELEGRAPH COMPANY

29 So. 787

79 Miss. 58

ELBERT A. JOHNSON v. WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Mississippi

April 22, 1901

FROM the circuit court of Sunflower county. HON. FRANK A MONTGOMERY, Judge.

Johnson the appellant, was plaintiff in the court below; the telegraph company, appellee, was defendant there. The opinion states the facts.

Affirmed.

Southworth Neill & Quinn, for appellant.

The sendee's right to recover damages for the negligence of the telegraph company does not arise out of the contract between the sendee and the telegraph company, nor out of contract at all, but his right of action is for tort--that is, the breach of public duty. Webb v. Telegraph Co., 61 Am. St. Rep., 207, and notes (s. c. 169 Ill. 610); Telegraph Co. v. Dubois, 128 Ill. 248; Telegraph Co. v. Lycon, 60 Ill. 124; Telegraph Co. v. McKibben, 114 Ind. 511 (s. c. 15 Am. St. Rep., 109); Fairley v. Telegraph Co., 73 Miss. 6; Shingleur v. Telegraph. Co., 72 Miss. 1030; Telegraph Co. v. McLaurin, 70 Miss. 26; Telegraph Co. v. Allen, 66 Miss. 549.

The court below erred in sustaining the appellee's objections as to the remoteness of the damage. Where the negligence of the telegraph company in failing to promptly deliver a message causes the complainant to lose a situation, he is entitled to recover of the company the actual damage sustained by him in consequence of the loss. The same right of recovery exists where a contractor loses, through the negligence of the company, the opportunity to secure a valuable contract." 25 Am. & Eng. Enc. L., 852, 853; Alexander v. Western, etc., Co., 69 Miss. 160.

In so far as the remoteness of the damages, or the speculative character of the gains affect the appellant's right of action in the case at bar, we submit that the decisions of this court are sufficient to settle those points in favor of the appellant. Alexander et al. v. Telegraph Co., 66 Miss. 161; 67 Miss. 386. Gains prevented are recoverable, as well as losses sustained. Fairley v. Telegraph Co., 73 Miss. 7.

Mayes & Harris and Campbell & Starling, for appellee.

We concede it is settled that in some instances profits are recoverable. They are not excluded simply because they are profits, but they are generally excluded because they are uncertain, contingent, conjectural and speculative. They are not awarded where they are remote, uncertain, conjectural, speculative, or not within the contemplation of the parties in the case of contract, or the natural, proximate result in the case of tort. 8 Am. & Eng. Enc. L., 608 et seq.

Two elements of reasonable certainty must concur: (1) It must be reasonably certain that the damages claimed resulted from the injury complained of; (2) the damages claimed must, in themselves, be reasonably certain. Manufacturing Co. v. Hatcher, 3 L. R. A., 587; Hunt v. Pacific R. R. Co., 1 L. R. A., 842; Union Refining Co. v. Barber, 77 Ala. 156; Birgham v. Carlisle, 78 Ala. 248; Telegraph Co. v. Hall, 124 U.S. 444 (s. c. 5 Am. & Eng. Enc. L., 398); Frazer v. Smith, 60 Ill. 149; Railroad Co. v. Cobb, 64 Ill. 128; Railroad Co. v. Cannister, 61 Ark. 560; Taylor v. Hatcher, 3 L. R. A., 590; Walser v. Telegraph Co., 114 N.C. 440.

In the light of the authorities and of the facts set forth in this record, the court below was right in excluding the special damages claimed and instructing the jury that they could not be awarded: (1) Because the damages were not within the contemplation of the parties to the telegram, and they were not the natural or proximate result of the failure to deliver the same; (2) it is not certain (in fact, the proof shows otherwise) that the failure to deliver the telegram was the cause of the damages complained of. In other words, it is not certain, by any means, that appellant would have taken the work, or what part of the work he would have taken, had the telegram been delivered. His own testimony is that he had an opportunity, after the telegram was sent, to take the work, but he himself decided not to do so; (3) the damages claimed are uncertain in themselves; incapable of exact or reasonably certain estimation. They are conjectural, speculative and remote.

Argued orally by S.D. Neill, for appellant, and by J. B. Harris, for appellee.

OPINION

TERRAL, J.

R. M Quigley & Co., of St. Louis, on July 27, 1898, sent to appellant the following telegram: "E. A. Johnson, Morehead, Miss.: We have million yards, pay...