Texas & W. Telegraph & Telephone Co. v. Mackenzie

• Decision Date: 25 May 1904
• Citation: 81 S.W. 581
• Parties: TEXAS & W. TELEGRAPH & TELEPHONE CO. et al. v. MACKENZIE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 581

TEXAS & W. TELEGRAPH & TELEPHONE CO. et al. v. MACKENZIE.^*

Court of Civil Appeals of Texas.

May 25, 1904.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by C. W. Mackenzie against the Texas & Western Telegraph & Telephone Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Patterson & Buckler, for appellants. W. C. McGown, P. H. Clarke, and Edwards & Edwards, for appellee.

NEILL, J.

This appeal is from a judgment of $1,000 in favor of the appellee against appellants. The nature of the case will be indicated by our conclusions of fact, which are as follows:

The appellee, C. W. Mackenzie, was on the 25th day of December, 1902, and ever since has continued to be, a building contractor, residing in the city of El Paso, Tex. On the day stated G. H. French contemplated erecting a hotel building in the town of Douglas, Ariz., according to certain plans and specifications, which had been drawn therefor. At that time, and upon the dates hereinafter stated, appellant the Texas & Western Telegraph & Telephone Company owned a telegraph line extending from, to, and through the towns of Benson and Douglas, Ariz., which line was operated by appellant the Postal Telegraph Cable Company, which maintained offices and agents in said town for receiving, transmitting and delivering messages. The Western Union Telegraph Company and the Postal Telegraph Cable Company maintained a joint office and agent at Benson for receiving and transmitting telegrams over the respective lines operated by them. Telegrams from the city of El Paso, Tex., to Douglas, Ariz., were received at the first-named city, and transmitted by the Western Union Telegraph Company over its line to Benson, Ariz., where they were received by the Postal Telegraph Cable Company and sent over the line of the Texas & Western Telegraph & Telephone Company to their destination.

A. E. Williams, acting for and as agent of G. H. French, on the 27th day of December, 1902, furnished appellee with copies of the plans and specifications of the hotel French contemplated building in Douglas, Ariz., and solicited Mackenzie as a building contractor to make and forward to him at Douglas a bid for the erection and construction of said building according to said plans and specifications. It was arranged and understood between Williams and appellee that the latter's bid should be in by the afternoon of December 29th, when it, as well as those of other contractors who might bid on the building, would be opened, and the contract awarded to him whose bid might then be accepted by Mr. French; the latter, however, reserving the right to reject any and all bids. After receiving the plans and specifications, the appellee as expeditiously as possible made an estimate of the cost of erecting the building, and upon the morning of the 29th of December, 1902, concluded that he could take the contract for $10,500, and to bid that amount. Whereupon, at about half-past 11 on the morning of December 29th, he went to the office of the Western Union Telegraph Company in El Paso, Tex., and delivered to its agent for transmission over its line to Benson, and thence over appellants' lines to Douglas, the following telegram: "12-29-02. Mr. A. E. Williams, Douglas, Arizona. Bid ten thousand five hundred, good hand brick. Can rush building. If satisfactory, wire today. Will come tomorrow. C. W. Mackenzie"—paying to said company 65 cents for sending the message, which covered the full charges for transmitting messages to and delivered at Douglas. At the time he informed the operator of the import of the telegram, that it was very important, and that it should be transmitted and delivered right away; that the bids were going to be opened, and that they were waiting on his bid. The message was at once transmitted by the Western Union Telegraph Company, and was received at Benson at 11:14 a. m., Pacific time, which was 12:14 El Paso or mountain time. When transmitted, the Western Union indicated and informed the agent of the Postal Telegraph Cable Company at Benson of its importance, and that it was a "rush" message. A copy of the message was then given to the operator of appellants' telegraph line, extending from Benson to Douglas, with notice of its importance, for immediate transmission to the last-named town. Instead of promptly transmitting the telegram, it lay in the office at Benson 2 hours and 21 minutes before it was sent over appellants' line to Douglas. An hour would have been a reasonable time for the transmission of the message from El Paso and its delivery at Douglas; but it did not reach Douglas until 2:55 p. m. Pacific or local time, and it was not delivered to Williams until 10 o'clock on the next morning.

These facts, as well as other facts and circumstances, show that appellants negligently delayed the transmission and delivery of said message. The bids for the building were opened between 5 and 6 o'clock on the evening of December 29, 1902, appellee's bid not having been received, and all were rejected, and the contract alone for the brick work on the building was awarded to one O'Connor. Appellee's was the lowest bid. Had appellants transmitted said message, stating his bid, it would have been received by Williams and delivered to French before the bids were opened, and would have been considered, accepted, and the contract for the erection of the entire building, according to the plans and specifications, awarded to appellee, who would, as is reasonably shown by the evidence, have made a net profit on said contract of $1,000. By reason of the negligent delay of appellants in the delivery of said telegram, the contract was lost to him, with the consequent loss of said profit he would have made thereon. Wherefore appellee was damaged by said negligence of appellants in the sum of $1,000.

Conclusions of Law.

Where a telegram, offered and accepted for transmission, expresses the object of the sender, or the purpose and importance of the message are made known, and by actionable negligence is unreasonably delayed in its transmission and delivery, the telegraph company, if there be no valid regulation affecting the measure of damages, is liable for such injury as is the direct, natural, and necessary cause of defeating the object which would have been accomplished by the seasonable delivery of the message. Tel. Co. v. Hoffman, 80 Tex. 420, 15 S. W. 1048, 26 Am. St. Rep. 759; Tel. Co. v. Bowen, 84 Tex. 476, 19 S. W. 554; Sutherland on Dam. (3d Ed.) § 961; Griffin v. Clover, 16 N. Y. 489, 69 Am. Dec. 718; Joyce on Elec. Law, § 952. When notice of the main purpose of the message is sufficient to put the telegraph company upon inquiry as to the attendant details, it is chargeable with notice of all it could have learned by such inquiries. Tel. Co. v. Edsall. 74 Tex. 329, 12 S. W. 41, 15 Am. St. Rep. 835; Tel. Co. v. Birge-Forbes Co. (Tex. Civ. App.) 69 S. W. 181; Tel. Co. v. Nagle, 11 Tex. Civ. App. 450, 32 S. W. 707; Joyce on Elec. Law, §§ 952, 953. The rule that, in order to hold the company liable for special damages, it must have notice of the importance of the message, is not to be considered as meaning that all the details in reference to the transaction referred to in the dispatch, and which are known to the parties themselves, must be disclosed to the company. Where the message reasonably informs the operator, or he is informed by the sender, that it is of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit and deliver it within a reasonable time, unless such negligence is in some way excused. Joyce on Elec. Law, § 952, and authorities cited in note 28, pp. 911, 912. These principles are fully recognized by the trial court in its charge. Bearing these principles in mind, we will now pass to the consideration of appellants' assignments of error.

The first complains of the court's refusing, at defendants' request, to peremptorily instruct a verdict in their favor; the second, of its refusal to charge, at their instance, that the only damages the plaintiff could recover is the toll he paid for the telegram; the third, fourth, fifth, sixth, and seventh of the court's admission in evidence of and its failure to strike out the testimony of the witness G. H. French to the effect that he would have accepted the bid of plaintiff, and given him the contract to build the hotel at Douglas, if he had been notified of Mackenzie's bid before the evening of December 29, 1902; and the eighth and ninth complain of the court's admitting in evidence and refusing to strike out the testimony of the witness E. A. Williams to the effect that, if appellee's bid had been received before the evening of December 29, 1902, he would have accepted the bid.

The insistence of appellants under these assignments is that, had appellee's bid been received by French on the afternoon of December 29, 1902, and before the other bids were opened, it is altogether problematical and uncertain whether or not the contract would have been awarded to him. This insistence is based upon the proposition that the testimony of French and Williams to the effect that the contract would have been awarded appellee, had his bid been received in time, is simply an expression of the witnesses' opinion, and was not relevant and competent to show that appellee's bid would have been accepted and the contract awarded him; that, therefore, there is no legal evidence to establish such fact, and, consequently, without proof of it, no damages were shown to have accrued by reason of the delay in the delivery of the telegram. The only means of proving whether appellee's bid would have been accepted or not was by the testimony of French and Williams, or the testimony of at least one of them. They alone...