W.U. Tel. Co. v. Milton

• Decision Date: 13 March 1907
• Citation: 43 So. 495,53 Fla. 484
• Parties: WESTERN UNION TELEGRAPH CO. v. MILTON.
• Court: Florida Supreme Court

43 So. 495

53 Fla. 484

WESTERN UNION TELEGRAPH CO. v. MILTON.

Florida Supreme Court, Division A.

March 13, 1907

Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

Action by John Milton, Jr., against the Western Union Telegraph Company. From judgment in favor of plaintiff, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action on the case for damages, if the declaration makes a case entitling the plaintiff to any recovery whatever, though it be only nominal damages, a demurrer will not lie thereto even if the declaration claims other or greater damages than the cause may legally entitle the plaintiff to recover demurrer not being the proper way to test the extent of the recovery to be had. Such questions are properly raised and settled by objections to testimony at the trial, or by instructions to the jury as to the law applicable to the points raised, or by requiring the declaration to be reformed, under section 1043, Rev. St. 1892 (Section 1433 Gen. St. 1906).

The amount paid to a telegraph company for transmitting a message is for correctly transmitting it, as the duty of the company requires it to do; and if, because of the negligence of the employés of the company, an incorrect copy of the message is transmitted and delivered, the company has failed in the performance of its duty imposed by law and assumed by it, and is liable for such failure, notwithstanding a provision limiting its liability to the amount paid for transmission of unrepeated messages printed on the blanks furnished by the company upon which messages for transmission are written by patrons.

The duty of a telegraph company, imposed by law and assumed by it, to use due care and skill in transmitting messages and in delivering a correct copy thereof, and its liability for negligence or carelessness in transmitting messages, and in delivering an incorrect copy of messages, cannot be affected by a printed provision, upon the blanks used in delivering messages to be transmitted by wire, that the company 'shall not be liable for mistakes and delays in the transmission or delivery, or for nondelivery of any unrepeated message, beyond the amount received for sending same.'

In an action in tort against a telegraph company for the breach of a public duty in negligently transmitting an incorrect copy of a message delivered to it for transmission, the damages that can be recovered are for the loss or injury sustained by the plaintiff as a proximate consequence of the defendant's negligent act, which consequences were contemplated, or should have been contemplated, as probable or likely to follow the negligence.

Where the terms of a message delivered to a telegraph company for transmission are sufficient to show its relation to matters of importance known to the agent receiving the message, the defendant is liable in damages for such injury actually sustained as, under the circumstances, it should have contemplated would probably result from a negligent transmission of the message. 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.

COUNSEL

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

Benj. S. Liddon, for defendant in error. The defendant in error brought an action in the circuit court for Jackson county against the Western Union Telegraph Company for damages for the failure to transmit and deliver a correct copy of a telegram received from the plaintiff for transmission.

The amended declaration, filed July 7, 1905, is as follows: 'Now comes plaintiff and by his attorneys sues the Western Union Telegraph Company, a foreign corporation, for that, whereas, heretofore, to wit, on the 24th day of September, A. D. 1904, and for a long time before said date, and continuously ever since said date, the said defendant was a telegraph company engaged in the transmission of messages, by electric wires, from various points in the United States, and that on the said date above mentioned said plaintiff delivered to the said defendant, at its office and place of business in the town of Marianna, Jackson county, Florida, a message to be sent and delivered by said defendant, for reward and hire then and there paid defendant, by electric wire, to a firm or corporation called 'George H. McFadden & Bros. Agency,' at Pensacola, Florida, in the words and figures following, to wit.: 'Marianna, Florida, 9-24-04. George H. McFadden & Brothers Agency, Pensacola, Florida: Bought for your account to-day's limit 175. Am doing my best to rush bill lading. John Milton, Jr.' That the said George H. McFadden & Bros. Agency was engaged in the business of purchasing and selling cotton on and before said date, and the said words 'one hundred and seventy-five' meant 175 bales of cotton which plaintiff had that day purchased for the account of the said George H. McFadden & Bros. Agency; and the fact that said George H. McFadden & Bros. Agency was engaged in dealing in cotton, and that the plaintiff had been engaged in shipping cotton to and buying cottion for said agency, was well known to the said defendant. Said plaintiff, on the said day and date aforesaid, had a contract with the said George H. McFadden & Bros. Agency to buy for the account of the said George H. McFadden & Bros. Agency all of the cotton which he could buy at 10 cents per pound upon a basis of middling cotton; the said 10 cents middling basis being the limit of price which he was authorized on said day to buy. That the said George H. McFadden & Bros. Agency agreed to take and receive from the said plaintiff all the cotton he could buy at the price aforesaid upon his (the plaintiff's) reporting by wire the number of said bales which he had so bought on said day to said George H. McFadden & Bros. Agency; but, instead of transmitting said message, as it was written and delivered as aforesaid, to it, said defendant, said defendant in the transmission of said message negligently and carelessly substituted and used the words 'one hundred and twenty-five' in the place and stead of the words 'one hundred and seventy-five,' whereby plaintiff lost great sums of money, as follows: Said George H. McFadden & Bros. Agency, being only advised of the purchase of 125 bales of cotton by the plaintiff, by reason of the error and negligence of said defendant in transmitting and delivering said message, would only receive, as purchased on said day for their account by said plaintiff, 125 bales of cotton, and rejected the other 50 bales. The market for cotton had fallen one-half cent per pound by the time said cotton which had been bought as aforesaid by the plaintiff could arrive in Pensacola, Fla., and be delivered to said George H. McFadden & Bros. Agency. The said George H. McFadden & Bros. Agency would only allow plaintiff, by reason of the premises, 9 1/2 cents per pound upon said 50 bales in excess of the 125 reported to it by the telegraph message aforesaid. Wherefore plaintiff lost one-half cent per pound on 50 bales of said cotton, total weight of said bales being 26,700, or a total loss of $133.50. Wherefore plaintiff brings suit and claims $500 damages.'

The declaration was demurred to on the grounds:

'(1) The negligence alleged is not the proximate cause of the loss claimed.

'(2) The fact that the message was sent 'one hundred and twenty-five,' instead of 'one hundred and seventy-five,' could not affect the right of plaintiff to claim on 175 bales; the amount plaintiff's amended declaration shows he was authorized to buy for the account of George H. McFadden & Bros. Agency.

'(3) The damages claimed are not such as might fairly be supposed to have been in contemplation of the parties when the contract of the transmission of the telegram was made.

'(4) The damage alleged, and in the way alleged, it not one for which the law allows recovery.

'(5) The amended declaration does not state a cause of action.'

The demurrer was overruled and the defendant company filed the following pleas:

'(1) Not guilty.

'(2) The message delivered by the plaintiff to it at its place of business in the town of Marianna, as set forth in the declaration, to be sent and delivered to George H. McFadden &amp Bros. Agency, at Pensacola, Fla., was received under the special condition in contract as follows: 'All messages taken by this company are subject to the following terms: To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half of the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery of any unrepeated message, beyond the amount received for sending same; nor for mistakes or delays in the transmission or delivery, or for nondelivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of the lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of a message to any point on the lines of this company can be insured by contract in writing stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeating messages, viz., 1 per cent. for any distance not exceeding...