W.U. Tel. Co. v. Merritt

• Decision Date: 09 April 1908
• Citation: 46 So. 1024,55 Fla. 462
• Parties: WESTERN UNION TELEGRAPH CO. v. MERRITT et al.
• Court: Florida Supreme Court

46 So. 1024

55 Fla. 462

WESTERN UNION TELEGRAPH CO. v. MERRITT et al.

Florida Supreme Court

April 9, 1908

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

Action by John A. Merritt and others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

The rule in this state as to the measure of damages in actions against telegraph companies for negligence in the transmission or delivery of messages is that formulated in Hadley v. Baxendale, 9 Exch. 341: 'Where two parties have made a contract, which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally i. e., according to the usual course of things from such breach of contract itself, or such 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.' This rule is applied here whether the particular action is ex contractu or ex delicto.

Where the message as delivered for transmission is in cipher and unintelligible except to the sender and addressee and no explanation is made to the operator as to its import and importance, the telegraph company is liable for transmitting it incorrectly in nominal damages only, or, at most, the sum paid for its transmission and delivery.

Where the message affords the only evidence of its import and importance, and the company is not otherwise advised thereof although it may be couched in unusual, abbreviated, or technical language, yet, if it be sufficiently plain to indicate its nature and importance--that is, that it relates to a business transaction of importance, and that a pecuniary loss will probably result unless it is promptly and correctly transmitted--recovery will not be limited to nominal damages.

It is not essential that the message disclose all the details of the transaction to which it relates, nor the particular business intended. The rule in Hadley v. Baxendale 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.

When the message does not contain words sufficiently plain to indicate its nature and importance, but the company acquires this knowledge from extrinsic facts at the time the contract of sending is made, it will be liable for a failure to send the message accurately and promptly, just the same as if the message showed this fact on its face.

In determining whether the telegraph company had information of the importance of the message, or the necessity for its prompt and correct transmission, the court and the jury may consider the surrounding circumstances, particularly the fact that the operator knew or ought to have known of the general nature of the message from other messages handled by him relating to the same transaction.

Where there is doubt as to whether the words contained in the message were sufficient to indicate its importance, whether this is true with respect of the operator, or whether the latter was made more certain of its nature and importance by extrinsic facts are questions for the jury.

The message 'Close,' read in the light of the evidence furnished by the message to which it was an answer 'Offer 650 Tampa Nipe Bay, answer quick,' clearly showed to the company's operator that it related to a business transaction of importance and that a pecuniary loss would probably result, unless it was promptly and correctly transmitted. Taylor and Hocker, JJ., dissenting.

Where a telegram contains abbreviated expressions and figures intelligible to the parties themselves, and to those of a particular business in which the parties were engaged, but were unintelligible to a certain extent to persons not familiar with such business, parol evidence is admissible to show that they have a recognized and generally understood meaning in the trade or business to which the subject of the telegram relates. Such evidence merely translates the writing, for the benefit of the jury, from the language of the trade into the language of people generally.

In an action against a telegraph company for negligence in the transmission of a message, it is not error for the court to refuse to strike certain parts of the declaration which are explanatory of the meaning of the message so as to declare the cause of action.

In an action against a telegraph company for negligence in the transmission of a message, an allegation in the declaration that the offered charter would have been closed and the voyage would have been performed had the telegram been transmitted to the sendee in the same language as it was delivered to the company is proper in order to show the proximate cause of the injury.

In an action against a telegraph company for negligence in the transmission of a message, whereby the sendee of the message who was the master of a vessel declined an offer to charter the vessel because the message was so negligently altered in its transmission that the master understood by the message as delivered to him that he was not authorized to close the charter offered to him, it was not incumbent on the master of the vessel to take care to ascertain the correctness of the message received by him.

When no objection is made to the introduction of testimony on the trial of a cause, such testimony is considered as received by consent, and, when such testimony is not irrelevant or immaterial, the court errs in withdrawing such evidence from the consideration of the jury by an instruction to that effect.

A requested instruction leaving out of consideration some of the testimony pertinent to such instruction is properly refused, and it was not error for the court to correct this defect by an addition thereto.

A demurrer does not lie to a bill of particulars. A demurrer does not reach the question of damages if the declaration shows a valid claim to any damages whatever.

A motion for compulsory amendment of a declaration should state that the declaration was so framed as to prejudice, embarrass, delay a fair trial of the case.

COUNSEL

John E. Hartridge & Son, for plaintiff in error.

Blount & Blount & Carter, for defendants in error.

The defendants in error, hereinafter called the plaintiffs, on the 4th of February, 1907, filed in the circuit court of Escambia county the following declaration with a statement of damages, against the plaintiff in error, hereinafter called the defendant:

'In Escambia County Curcuit Court, State of Florida.

'John A. Merritt, R. H. Turner, Jr., L. H. Green, Rix M. Robinson, Bryan Dunwody, Adrian Dunwody, S. A. Dunwody, I. H. Aiken, John Christie, Thomas Johnson, Arthur Johnson, C. E. Mason, William H. Swan, John D. Eastman, and Angela M. Eastman v. Western Union Telegraph Company.

'The plaintiffs sue the defendant because:

'(1) Prior to the 24th day of December, 1905, the defendant was, and has been ever since, operating an electric telegraph line between Pensacola, Fla., and Cardenas, Cuba, over which it transmitted, for hire, for the public, telegraphic messages; that on the said 24th day of December, 1905, the plaintiffs were, and still are, the owners of and operating the schooner Doris; that the said schooner was for hire to such persons as her, and was on said day, at Cardenas, Cuba, should, from time to time, desire to charter her, and was on said day, at Cardenas, Cuba, then and there the master of said vessel and in command of her, on said day received an offer from a person who desired to charter the said vessel for $6.50 per M feet of lumber which could be carried as a cargo by said vessel from Tampa to Nipe Bay, and therefore he telegraphed to John A. Merritt at Pensacola, Fla., one of the plaintiffs, and acting for the plaintiffs, as follows: 'Offer 650 Tampa Nipe Bay. Answer quick'--that the said telegram was delivered to the said Merritt on December 25, 1905; that the said Eastman intended that the said Merritt should understand and the said Merritt did understand the said message to mean that the said Eastman had received an offer for the charter of the said vessel from Tampa to Nipe Bay at the rate of $6.50 per M feet of lumber which could be carried as a cargo by the said vessel from the said point to the said point, and that he desired authority from the said Merritt to accept the said offer; that so understanding the said Merritt immediately, to wit, on December 25, 1905, delivered to the defendant for sending by it, for hire, to the said Eastman, at Cardenas (and paid to it the sum demanded by it for such sending), the following message, to wit: 'Close'--by which the said Merritt intended that the said Eastman should understand, and, had the said message been trasmitted and delivered to the said Eastman in the same language and terms as it was delivered to the defendant, the said Eastman would have understood, that he, the said Eastman, was to accept the said offer, and he would have accepted the same, and the said offered charter would have been closed and the said voyage would have been performed, and the said offered charter hire would have been received by plaintiffs; and the defendant received from the said Merritt the said telegram, and undertook to deliver it as received to the said Eastman, but that it failed to transmit and deliver to the said Eastman the said

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