Kerns & Lorton v. Western Union Telegraph Co.

• Decision Date: 19 May 1913
• Citation: Kerns & Lorton v. Western Union Telegraph Co., 157 S.W. 106, 170 Mo. App. 642 (Mo. App. 1913)
• Parties: KERNS & LORTON v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

157 S.W. 106

170 Mo. App. 642

KERNS & LORTON v.WESTERN UNION TELEGRAPH CO.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

1. TELEGRAPHS AND TELEPHONES (§ 67) — MESSAGE — DELAY — ACTION EX DELICTO — DAMAGES.

In an action ex delicto against a telegraph company for failure to deliver a message with reasonable dispatch, the injured party is not limited to damages which might reasonably have been within the contemplation of the parties, but may recover for all the injurious results flowing therefrom in ordinary and natural sequence, without the interposition of any other negligent or overpowering force.

2. TELEGRAPHS AND TELEPHONES (§ 66) — LOSS OF PROFITS — DELAY IN DELIVERING TELEGRAM.

By reason of defendant's delay in delivering a telegram, a car load of peaches did not reach their destination in time for the morning market, and plaintiffs were compelled to sell them at a discount because of their overripe condition and lack of market in the afternoon.It was proved that there were 408 bushels of peaches in the car; that each crate weighed 60 pounds; that the freight was 30 cents per hundred, with $45 for refrigeration; that the peaches had cost plaintiffs, freight included, $526.44, and in their overripe condition were sold for $436.Had they been in good condition when placed on the market, they would have sold for 75 cents a bushel more than plaintiffs paid for them.The market for peaches in good condition was strong, and plaintiffs had advance orders for 150 bushels, and were enabled to sell them all in an impaired condition at a discount.Held, that a judgment allowing plaintiffs $200 was not objectionable as allowing profits not proved with sufficient certainty.

3.DAMAGES (§ 190) — LOSS OF PROFITS — PROOF.

The rule that damages for loss of profits are not recoverable is not based on any objection to loss of profits as such, but on the fact of inability to prove the loss with proper certainty, as, where the profits depend on business skill or ability of a person or firm, the state of the weather, the favor of the public, the fluctuations of the market, etc.; but, where the items of loss can be ascertained with reasonable certainty, they may be allowed.

4.TELEGRAPHS AND TELEPHONES (§ 53) — DELAY IN DELIVERY — LOSS OF GOODS — PROXIMATE CAUSE.

Negligence of a telegraph company in failing to promptly deliver a message, directing plaintiff's agent to divert a car load of peaches to a different place and on a different road from that intended, held the proximate cause of loss sustained by plaintiff's inability to get the peaches on the market in time to sell them without loss.

5.TELEGRAPHS AND TELEPHONES (§ 67) — MESSAGES — DELIVERY — DELAY.

Where a message by plaintiff to its agent directed him to bill a certain car, "Macon via Wabash instead of Milan," it showed on its face that it related to a business transaction; and hence plaintiff, in an action ex delicto against the telegraph company for failure to deliver the message with reasonable promptness, was presumed to have contemplated all damages flowing naturally and directly from its breach of duty, and plaintiff was not limited to nominal damages.

6.TELEGRAPHS AND TELEPHONES (§ 52) — DUTY TO DECREASE LOSS.

Plaintiffs, expecting a car load of peaches, wired their agent to divert them to "Macon via Wabash instead of Milan," where they would have arrived, if the message had been promptly delivered, in time for the morning market.Plaintiffs, having no knowledge that the message had not been delivered, went to Macon to handle the peaches on arrival, and inquired of all the depots, and had an investigation made along the Wabash to ascertain, if possible, where the car was, when it had not arrived.Plaintiffs then returned to their place of business, but, being immediately informed by the agent of another road that the peaches had arrived, immediately returned to Macon on the same day and sold the peaches at a loss.Held, that plaintiffs were not negligent in thinking that the car had not been shipped when it had not arrived according to their message, and had fulfilled their duty to do everything possible to minimize the loss.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Kerns & Lorton against the Western Union Telegraph Company.Judgment for plaintiffs, and defendant appeals.Affirmed.

Fred S. Hudson, of Chillicothe, for appellant.Weatherby & Frank, of Kirksville, for respondents.

TRIMBLE, J.

In this caseplaintiffs sue for damages said to have been caused by the alleged failure of defendant to promptly transmit and deliver a telegram sent from Kirksville to St. Louis on July 26, 1910.The proof showed (and no controversy is made over it) that the message was delivered to the operator in defendant's office at Kirksville at 1:40 p. m.; that the usual charge for transmission was paid; that the time required to transmit and deliver a message from Kirksville to any point within the free delivery limits of St. Louis, in which limits the addressee of the message had his office, was 30 minutes; that the message was correctly addressed to the recipient; that, had it been transmitted and delivered with the usual promptitude, it would have reached the addressee about 2:10 or 2:15 p. m., but that it did not reach him until about 7:30 o'clock in the evening, when its contents were telephoned to him from defendant's office, and the message itself was delivered the next morning, July 27th.It seems that plaintiffs had ordered J. M. Patterson, of St. Louis, to ship them a car load of peaches from St. Louis to Milan, Mo., over the Burlington Railroad.But after the order had been given, plaintiffs, thinking a better market for them could be had at Macon, concluded to have the peaches shipped to that town instead of Milan, and to have them shipped over the Wabash instead of the Burlington.It was for the purpose of changing the route and destination of this car of peaches that the telegram was sent.Had the message been received by the addressee at any time prior to 4 o'clock p. m. July 26th, it would have enabled him to bill the car over the Wabash to Macon as directed.Owing to the delay in delivery, however, the car, when the contents of the message were telephoned to the addressee, had already been started on its way to Milan over the Burlington.The recipient of the telegram immediately upon learning its contents succeeded in having the car en route ordered dropped at Macon as it would have to go through Macon on its way to Milan.Had the car been sent over the Wabash as directed in the telegram, it would have arrived in Macon between 3 and 4 o'clock of the morning of July 27th, but as it came over the Burlington, it did not arrive until 10 minutes to 9 of that morning.The evidence discloses that peaches when ripe for shipment become overripe very quickly in hot weather; that they become unfit for market if not in firm and good condition; that to enable them to be sold on the market they must be placed on sale early in the morning, as housewives will not buy them to can or otherwise preserve them in the afternoon, and, because of their liability to quickly soften, will not buy them in the middle or afternoon of one day to can or preserve the next.Not knowing that there had been a delay in the delivery of the telegram, plaintiffs went from Kirksville to Macon at midnight of the morning of the 27th, to be there in time to receive the peaches over the Wabashat 4 o'clock, and thus get them on the early market of that day.Upon inquiry at the Wabash depot, plaintiffs learned from the agent that the St. Louis train had come but no peaches, and that no opportunity for them to come would arise until next morning.Thereupon they went to the Burlington depot and inquired for the peaches, and were told by the agent they were not there, and that the train they...