Providence-Washington Ins. Co. v. Western Union Tel. Co.

• Decision Date: 08 December 1910
• Citation: 93 N.E. 134,247 Ill. 84
• Parties: PROVIDENCE-WASHINGTON INS. CO. v. WESTERN UNION TEL. CO.
• Court: Illinois Supreme Court

247 Ill. 84

93 N.E. 134

PROVIDENCE-WASHINGTON INS. CO.

v.WESTERN UNION TEL. CO.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 8, 1910.

Appeal from Appellate Court, First District, on Appeal from Municipal Court of Chicago; John H. Hume, Judge.

Action by the Providence-Washington Insurance Company against the Western Union Telegraph Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals on a certificate of importance. Affirmed.West, Eckhart & Taylor (George H. Fearons and Francis Raymond Stark, of counsel) for appellant.

Bates, Harding, Edgerton & Bates, for appellee.

This action was brought by appellee, against appellant, to recover damages alleged to have resulted to the appellee from a breach of appellant's contract to deliver a message. Appellee had written a policy of insurance on a paper mill in Newark, Ohio, belonging at the time to Frank B. Silk. The property subsequently passed to the Newark Paper Company, and on January 2, 1902, the policy was, by the consent of appellee, assigned to the Newark Paper Company. The policy contained a clause authorizing its cancellation at any time upon the request of the insured, or by the insurer upon giving five days' notice of the cancellation. April 29, 1902, between 11 and 12 o'clock in the morning, F. W. Ransom, state agent of appellee, delivered to appellant's agent at Van Wert, Ohio, for transmission to M. J. Reese, appellee's local agent in Newark, Ohio, the following message: ‘Van Wert, Ohio, April 30, 1902. M. J. Reese, agt. Providence-Washington Ins. Co. Regret must cancel paper mill line. Daily was passed inadvertently. F. W. Ransom.’This telegram was never delivered to appellee's agent at Newark, Ohio, but was sent to New York City and delivered to appellee's agent there, finally reaching its manager at Chicago through the mails. On May 2, 1902, Mr. Reese, appellee's agent at Newark, Ohio, received instructions by mail to cancel the policy on the Newark Paper Company's property, and the paper company claimed the right to the five days' notice provided for in the policy. Before the expiration of the five days the property was burned, and the paper company sued appellee, and recovered a judgment for $1,636.94, which was afterwards compromised, and $1,200 paid by appellee in full satisfaction of the judgment. This action was brought to recover the $1,200 and interest from the time of its payment. The case was tried before the court without a jury, and a judgment rendered in favor of appellee for $1,365. The Appellate Court for the First District affirmed that judgment, and granted a certificate of importance, upon which the case is brought to this court for review.

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

Appellant contends (1) that its failure to deliver the message was not the proximate cause of the damage sustained by appellee; that the fire was the proximate cause, and, although the failure to transmit and deliver the message to appellee prevented the cancellation of the policy before the fire occurred, such failure is too remote to charge appellant with liability for the loss appellee sustained on account of the fire; (2) the breach of contract to deliver the message not being the proximate cause of the injury, the damages to be recovered are such, only, as according to the usual course of things result from the breach; that the fire could not have been foreseen by or in the reasonable contemplation of the parties to the contract as a probable result of the breach; (3) that the damages not arising in the usual and due course of things as a probable result of the failure to deliver the message, but out of circumstances peculiar to the special case, they are not recoverable, unless the special circumstances were known, or may necessarily be supposed to have been known, to appellant at the time it accepted the message.

In support of the contention that the failure to deliver the message could not in any sense be considered as the proximate cause of the injury, appellant relies upon Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695,Denny v. New York Central Railroad Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645,Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106, and other cases from other jurisdictions. The Morrison Case and the Denny Case were referred to and commented upon in Wald v. Pittsburg, Cincinnati, Chicago & St. Louis Railroad Co., 162 Ill. 545, 44 N. E. 888,35 L. R. A. 356, 53 Am. St. Rep. 332. The rule announced in those cases is that where, on account of the delay of the carrier in transporting goods delivered to it, they were destroyed or damaged by floods beyond the power of the carrier's control, the proximate cause of the injury is the flood, and the carrier is not liable. The rule announced by those cases was relied upon in this court in the Wald Case. In that case Wald bought a ticket over the defendant company's railroad from Cincinnati to New York City by the limited express, and checked his baggage for transportation on the same train. The railroad company negligently failed to put the baggage on that train, but sent it on a later train, and it was destroyed by the Johnstown flood. The limited express upon which Wald rode, and which should have carried his baggage, reached its destination in safety. This court refused to...