Stumm v. W. Union Tel. Co.

• Decision Date: 26 October 1909
• Citation: 140 Wis. 528,122 N.W. 1032
• Parties: STUMM v. WESTERN UNION TELEGRAPH CO.
• Court: Wisconsin Supreme Court

140 Wis. 528

122 N.W. 1032

STUMM

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by G. W. Stumm against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover compensation for damages claimed to have been caused by negligence in failing to send and deliver a telegram.

Plaintiff applied by letter for employment as a second miller in a mill in Venezuela. He addressed the letter to a firm in New York in response to an advertisement inviting applications for the place. In due time he received an answer, through Allis-Chalmers Company of Milwaukee; stating that they were empowered in the matter and stating such things as he would likely wish to know before engaging, requesting a reply as to his experience, and informing him that, if they should engage him, a visit to them before going to take the place would be required. In due time he returned a satisfactory reply. Thereupon they wrote again, specifying the wages offered, stating that expenses both ways would be paid, and that, if the terms were satisfactory, they would probably have him come to Milwaukee to arrange details. Plaintiff responded accepting the terms. He soon thereafter wrote again. Two days later they telegraphed him to come to Milwaukee to make a contract. The message was duly received by defendant at its main office in Milwaukee and put on the wire. It went first to the Chicago office, then to the St. Louis office, where it was delivered to a 16 year old female operator for transmission to the point of destination, Staunton, Ill. It did not reach there or plaintiff. About three weeks thereafter plaintiff gave up the position he had, supposing he was going to obtain the place for which he had applied, and went to Milwaukee to see about it. The Allis-Chalmers Company, not hearing from plaintiff, had entered into negotiations with another man in respect to the matter, whom they employed. Plaintiff stood ready to take the place on the terms that had been stated to him, but was unable to secure it for the reason indicated. They waited some two weeks to hear from plaintiff before entering into negotiations with the other man for the place. The employment of such other was ratified by the principals in New York. Plaintiff had been out of employment, at the time of the trial, some nine months.

Defendant's explanation, in respect to failure to send and deliver the telegram was that it occurred by reason of strike disturbances and interferences which ordinary care on its part under the circumstances could not have prevented; that after some delay the operator at St. Louis got a response to the call for the Staunton office, whereupon the message was put upon the wire and its receipt, as appeared was duly signalled back.

There was a motion for a directed verdict in defendant's favor. After verdict various motions were made on behalf of defendant and denied, which will be referred to in the opinion so far as necessary. The jury found specially that the message was delivered to defendant to be sent plaintiff under the circumstances before detailed; that plaintiff failed to obtain the situation he applied for because of negligent failure of defendant to transmit to him and deliver such message; that the failure was not solely due to strike disturbance and that plaintiff was damaged by defendant's neglect in the sum of $800. Judgment accordingly was rendered in plaintiff's favor.Miller, Mack & Fairchild (Tullar & Lockney and George H. Fearons, of counsel), for appellant.

James D. Shaw and Oscar W. Kreutzer, for respondent.

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

The court is of the opinion that the judgment must be affirmed.

The questions raised are of such nature that it is not thought best to write any extended opinion in respect to them.

The damages claimed are not fatally speculative. The question on that subject is ruled in respondent's favor by Barker v. Western Union Telegraph Co., 134 Wis. 147, 114 N. W. 439, 14 L. R. A. (N. S.) 533, 126 Am. St. Rep. 1017, and similar authorities.

There was sufficient evidence to carry the case to the jury as to each inquiry in the special verdict. It seems needless to review the record and point out that which was competent as to each particular subject and the reasonable inferences therefrom. If the jury were warranted, in any reasonable view of the case as it was submitted to them, in reaching the conclusions embodied in the special verdict, that ends the matter as regards the facts.

It is contended that the court should have charged the jury, as requested, that respondent was not entitled to recover, in any event, on account of wages which he would have earned after May 20, 1908 (which is about the date of the trial), had the telegram been delivered and he had secured the employment to which it related. Counsel in that is misled by the law in respect to recovery on an employment contract in case of a wrongful refusal of the employer to carry out the agreement. Then wages lost are only recoverable up to the time of the trial. This is not such a case. It is an ordinary action for damages for wrongful conduct preventing respondent from obtaining employment....