Mcmillan v. W.U. Tel. Co.

• Decision Date: 04 March 1910
• Citation: 53 So. 329,60 Fla. 131
• Parties: McMILLAN et al. v. WESTERN UNION TELEGRAPH CO.
• Court: Florida Supreme Court

53 So. 329

60 Fla. 131

McMILLAN et al. v. WESTERN UNION TELEGRAPH CO.

Florida Supreme Court

March 4, 1910

On Rehearing, June 25, 1910.

Headnotes Filed Oct. 7, 1910.

In Banc. Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by A. E. McMillan and W. P. Brownson, copartners as the McMillan Brick Company, against the Western Union Telegraph Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Syllabus by the Court

SYLLABUS

A message reading: 'We want some brick. When are you going to ship?'--puts a telegraph company on notice that substantial business loss to the addressee may follow nondelivery.

The fact that one party may at will put an end to a continuing contract does not destroy the right to substantial damages against a telegraph company, whose negligence alone actually caused its discontinuance.

COUNSEL Maxwell & Reeves, for plaintiffs in error.

Blount & Blount & Carter, for defendant in error.

The plaintiffs in error brought an action in the circuit court for Escambia county against the defendant in error, in which the declaration alleges:

'That the defendant was during the months of May and June, A. D 1906, the owner of and was operating a public telegraph line between the city of Camden, in the state of Alabama, and the station of Pine Barren, in the state of Florida, and held itself out to the public as receiving, transmitting, and delivering for hire telegraphic messages between the said two points; that during said months the plaintiffs were engaged in the business of manufacturing and selling brick, and entered into a contract with the Camden Hardware Company whereby the said Camden Hardware Company agreed to buy from them brick at the rate of four (4) cars per week, beginning June 1, 1906, until notified to stop [which said brick were purchased by the said Camden Hardware Company for the purpose of erecting a certain building which the said hardware company had contracted to build, and it was understood between the said hardware company and the plaintiff, in entering into said contract, that the said hardware company expected to buy from the said plaintiffs all of the brick, amounting to about 150,000, which would be required for the said building]. That on the 4th day of June, A. D. 1906, the said Camden Hardware Company delivered to the said defendant, at its office in Camden, Ala., for transmission and delivery for hire to the plaintiffs at Pine Barren, Fla., a message as follows:

"Camden, Ala., 4th.

"We want some brick. When are you going to ship?

"Camden Hardware Company.'

'Which message was received by the said defendant company for transmission and delivery to the said plaintiffs as aforesaid, and which it was its duty to transmit with all due promptness and diligence to the plaintiffs at said Pine Barren, yet the said defendant, disregarding its duty in the premises, neglected and failed promptly to transmit and deliver the said message to the plaintiffs, and unreasonably neglected, delayed, and withheld the same until the 6th day of said month of June, at which time it was delivered to the plaintiffs. [That the plaintiffs, immediately upon receipt of said message, made a shipment of brick to the said Camden Hardware Company, and telegraphed said hardware company of said fact, and that they would rush the balance of the order; but the said Camden Hardware Company, being in need of brick and incurring liability for demurrage for want of them, on said 6th day of June, before hearing from the plaintiffs in response to their said telegram, and being ignorant as to whether any brick had been shipped, or when brick would be shipped under their said contract, upon said 6th of June wrote to the plaintiffs declining and refusing to continue their said contract or to take brick from the plaintiffs thereunder. That but for the said neglect and failure of duty on the part of the said defendant, in failing with due diligence and promptness to transmit and deliver the message as aforesaid, the said Camden Hardware Company would have purchased from these plaintiffs, who were ready, able, and willing to supply same under said contract, and would have done so had said message been delivered with reasonable promptness, the brick required for the erection of the building aforesaid, amounting to 150,000 brick, whereby the said plaintiffs would have derived their reasonable profits in the sale of said brick, amounting to the sum of five hundred ($500.00) dollars, and which said profits they have lost by reason of the said failure and neglect of duty on the part of the defendant as aforesaid.] Wherefore plaintiffs sue and claim one thousand ($1,000) dollars.'

On motion the court struck the two portions of the declaration contained within the brackets. The plea of not guilty was entered and withdrawn. Default was entered, and upon waiving a jury the court tried the cause and rendered judgment for $1 and costs in favor of the plaintiffs, who on writ of error here insist merely that the trial court erred in sustaining the motion to strike the portions of the declaration contained in the brackets as above set forth. Only compensation for loss of probable profits is involved.

OPINION

COCKRELL, J. (after stating the facts as above).

The wording of the message: 'We want some brick. When are you going to ship?'--addressed to a brick company, clearly put the telegraph company on notice that a matter of real business concern to the addressee was involved, and that negligence in its transmission would probably result in considerable pecuniary loss. This being so, the chief question is: Do the allegations stricken from the declaration destroy this potential right to substantial damages?

The fact that the sender of the message could put an end to the contract at any time might well prevent a cause of action ex contractu against it, but it does not of necessity destroy this action in tort against the telegraph company. This would seem to be foreshadowed by the court in Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 11 Am. St. Rep. 367, in which we held that the inability of an employé to recover from his employer for a discharge from service did not prevent recovery against a third party who maliciously caused the dismissal.

There are cases such as Savannah, F. & W. R. Co. v. Willett, 43 Fla. 311, 31 So. 246, where it was held that a servant could not recover upon a contract of employment of indefinite duration, terminable at the will of the master, and also cases holding no recovery can be had for lost prospects of employment or other contracts, uncertain as to duration, because terminable at the whim or will of the other party.

There would seem, however, to be a basis for distinction between contracts not yet entered into and those already made, where the only element of uncertainty as to time or volume of business is the ability of the losing party to please. To hold otherwise, and to confine the addressee of a telegram to cases where an ironclad contract exists, would be to deny him redress altogether; for, if the other party to the contract be solvent, he has there full redress, and, if he be not solvent, there has been no loss.

The declaration states positively that the building company would not have discontinued the purchasing, had it not been delayed and subject to damage by reason of the negligence in the delivery of the message, putting that fact in issue.

There would seem no special difficulty in admeasuring the damages in cases of this character, and this can be regulated by proper charges.

The judgment is reversed.

SHACKLEFORD and PARKHILL, JJ., concur.

WHITFIELD, C.J., and HOCKER, J., dissent.

TAYLOR, J., absent on account of illness.

A rehearing having been granted and the cause again fully considered, it is ordered and adjudged that the judgment heretofore entered stand as the judgment of the court. All concur, except WHITFIELD, C.J., who dissents.

CONCURRING

PARKHILL J. (concurring).

It is not so difficult to understand the rule that obtains as to the measure of damages in actions against telegraph companies for negligence in the transmission or delivery of messages, but it is its application to the different cases which puzzles and confuses the courts. We know very well that the damages must flow directly and naturally from the breach, and that they must be certain, both in their nature and in respect to the cause from which they proceed, and that under this rule only such damages may be recovered as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. But it is equally well settled that this rule, formulated in the famous English case of Hadley v. Baxendale, 9 Exch. 341, does not require that the parties must have contemplated the actual damages which are to be allowed, but such as may reasonably be supposed to have been contemplated. It is not essential that the particular loss or injury sustained was contemplated, but the company is liable if the loss sustained should have been contemplated as a probable and proximate result of its negligence. In other words, as was well said by Chief Justice Earl in Leonard v. New York & C. Tel. Co., 41 N.Y. 544, text 567, 1 Am. Rep. 446, 'a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.' See, also, Western Union Tel. Co. v. Merritt, 55 Fla. 462, 46 So. 1024, 127 Am. St. Rep. 169; Jones, Tel. & Tel. Companies, par. 517.

Now, it will be conceded that, without...