United States Telegraph Co. v. Wenger

• Decision Date: 03 July 1867
• Citation: 55 Pa. 262
• Parties: The United States Telegraph Co. <I>versus</I> Wenger.
• Court: Pennsylvania Supreme Court

55 Pa. 262

The United States Telegraph Co. versus Wenger.

Supreme Court of Pennsylvania.

May 14, 1867.

July 3, 1867.

May 14th 1867.

Before WOODWARD, C. J., THOMPSON and AGNEW, JJ. STRONG and READ, JJ., absent

Error to the Court of Common Pleas of Lancaster county.

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D. G. Eshelman and G. W. Patterson, for plaintiffs in error, cited Acts of March 11th 1836, § 7, pl. 22, Pamph. L. 78; 22d of April 1853, Pamph. L. 554; Railroad Co. v. Gazzam, 8 Casey 340; Sedgwick on Meas. of Dam., chap. 3, pp. 33, 98; Landberger v. Telegraph Co., 32 Barb. 550; Adams Express Co. v. Egbert, 12 Casey 360; Hadley v. Baxendale, 9 Excheq. 341; Prof. Dwight, N. Y., on the Law of Telegraphs and Telegrams, 4 Am. Law Reg. N. S. 203; Miller v. Mariners' Church, 7 Greenl. 51; Thompson v. Shattuck, 2 Metc. 615.

W. R. Wilson, for defendant in error, cited Bavington v. Pittsburg and Steubenville Railroad Co., 10 Casey 358; Telegraph Co. v. De Rutte, Am. Law Reg., May 1866, p. 418; Id. February 1865, p. 193; Story on Bailment, §§ 529, 510, 511; Verner v. Sweitzer, 8 Casey 208; Hayes v. Kennedy, 5 Wright 378; Story on Agency, § 217, c. 221; Wilson v. Wilson, 2 Casey 393; De Tastette v. Crousillat, 2 Washington C. C. 132-136; Morris v. Summerl, Id. 203; Park v. Alton Cal. Tel. Co., 13 Cal. R. 422; Bank of Montgomery v. Reese, 2 Casey 143; Kimmel v. Stoner, 6 Harris 156; Hadley v. Baxendale, 9 Exch. R. 341; Griffin v. Colver, 16 New York (2 Smith) 489.

The opinion of the court was delivered, July 3d 1867, by THOMPSON, J.

The broker of the plaintiff below, ordered the purchase of certain stocks in New York for him, by telegraph, on the 10th October, 1864, and having prepaid the charges gave the message to the defendants for transmission to his correspondents named therein. The message it appears got no further than Philadelphia, although the defendants' line extended to Portland, Maine. No such reason as the law would recognise, indeed no reason at all, was given for the failure to transmit the message to its destination. Thus, was there presented a clear case of gross negligence against the company in performing its undertaking, and a consequent liability to the plaintiff for such damage as he had sustained in consequence thereof. The stock ordered was of course not purchased on the day the despatch was given to the company to be transmitted, as it might have been, for it was not pretended it was not in the market; but three days thereafter it was procured at an aggregate advance of $462.50. This difference, the plaintiff claims, is the damage he has sustained and entitled to recover. Undoubtedly, this is the measure of damage in this case. The despatch was such as to disclose the nature of the business to which it related and that the loss might be very likely to occur if there was a want of promptitude in transmitting it containing the order. In this respect it differs much from that in Landberger v. The Magnetic Telegraph Co., 32 Barb. 550. "Get ten thousand dollars of the Mail Company," the message in that case said, but did not disclose that the money was to be gotten from the Mail Company, to save from failure a valuable contract; hence it was held, that the damages arising from that cause could not reasonably be presumed to have been in the contemplation of the parties to the contract or not recoverable to that extent. Here the object of the message was for the purpose of buying stock as soon as received; no other time being named, and it is not possible, consistently with any knowledge of the business of dealing in stocks, to fail to understand that damage might ensue, nay, would be likely to ensue, by delay. The damage from such a source was what would naturally have entered into the minds of the sender and the undertaker to send the message if they thought on the subject at all; and that they did think is true, if the witness was credible, and whose uncontradicted statement is, that he notified the operator that he would look to the company for damages if they failed in transmitting the message. The rule laid down by the learned judge as to the measure of damages was all right enough, and therefore in accordance with settled principles.

But there is one matter in which we think the court erred although it has scarcely received the attention of a passing notice by the counsel for the defendant in error, and that...