W.U. Tel. Co. v. Green

• Decision Date: 15 March 1926
• Citation: 281 S.W. 778,153 Tenn. 59
• Parties: WESTERN UNION TELEGRAPH CO. v. GREEN.
• Court: Tennessee Supreme Court

281 S.W. 778

153 Tenn. 59

WESTERN UNION TELEGRAPH CO. v. GREEN.

Supreme Court of Tennessee.

March 15, 1926

Certiorari to Court of Civil Appeals.

Action by H. M. Green against the Western Union Telegraph Company. Judgment of circuit court affirming judgment for plaintiff but reducing damages from $150 to $100 was reversed by Court of Appeals, which awarded plaintiff only $1 damages, and defendant brings certiorari. Judgment of Court of Appeals reversed, and judgment of trial court affirmed.

CHAMBLISS J.

Petitioner Green brought suit before a magistrate for damages for failure of the telegraph company to deliver to him promptly a message sent from Bristol, reading as follows:

"Dr H. M. Green, Green Building, Vine Avenue, Knoxville, Tennessee.

Please call on phone immediately.

Dr. R. B. McArthur."

As suggested by the address Dr. Green is a physician and surgeon in Knoxville, and Dr. McArthur is of the same profession, residing in Bristol. It appears that Dr. McArthur was unable to reach Dr. Green directly by phone, and hence telegraphed Dr. Green to call him; the purpose being to get Dr. Green to Bristol to perform professional services for which he would have been paid the sum sued for. The message was not delivered until the following day, too late for him to reach Bristol.

Plaintiff recovered before the magistrate $150, which on appeal to the circuit court was affirmed for $100, the court sitting without a jury. The Court of Appeals concurs, in effect, with the trial courts in finding the defendant company negligent and the plaintiff damaged to the extent of the judgment, but holds him entitled to recover nominal damages of $1 only. Petitioner, Green, challenges the application of this limitation, insisting that he is entitled to recover his actual loss or damage, naturally resulting from the violation by defendant company of the statutory public duty, which it owed to him as sendee, to deliver this message with reasonable promptness.

Reviewing the decisions in this state, the Court of Appeals finds that the right of a sendee to sue, either ex contractu or ex delicto, as the aggrieved party under Shannon's Code, §§ 1837, 1838, and recover such damages as result proximately and naturally from delay in delivery, is sustained by the following Tennessee cases: Marr v. Western Union, 3 S. W. 496, 85 Tenn. 529; Wadsworth v. Telegraph Co., 8 S. W. 574, 86 Tenn. 695, 6 Am. St. Rep. 864; Pepper v. Telegraph Co., 11 S.W. 783, 87 Tenn. 554, 4 L. R. A. 660, 10 Am. St. Rep. 699; Telegraph Co. v. Frith, 58 S.W. 118, 105 Tenn. 167; Gray v. Telegraph Co., 64 S.W. 1063, 108 Tenn. 39, 56 L. R. A. 301, 91 Am. St. Rep. 706; Telegraph Co. v. Potts, 113 S.W. 789, 120 Tenn. 37, 19 L. R. A. (N. S.) 479, 127 Am. St. Rep. 991.

The rule with reference to what damages are recoverable under these respective forms of action is quoted by the Court of Appeals from the opinion in Wadsworth v. Telegraph Co., supra, as follows:

"In an action for tort, the injured party may recover such damages as result proximately and naturally from the wrongful act of the defendant, and also exemplary damages where the act was done with malice, or under circumstances of aggravation; and in an action for a breach of contract the measure of damages recoverable is generally the loss which the contracting parties, with all the facts before them, would have contemplated as flowing directly from its breach."

The Court of Appeals then quite aptly thus comments:

"This appears to make separate tests for the two different causes of action; i. e. if the suit is ex delicto, all damages may be recovered which result proximately and naturally from the delay or failure to deliver, but, if the suit is ex contractu, only such damages may be recovered as the contracting parties, with all the facts before them, must have contemplated would flow from the delay or failure to deliver.

With reference to actions ex contractu, the Supreme Court in Pepper v. Telegraph Co., supra, said:

' "It is only necessary that the damages be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is such as might naturally be expected to follow its violation," and it was only necessary for the company to know that the telegram related to a matter of business which, if improperly transmitted, might lead to pecuniary loss, upon the basis above suggested, to be increased or diminished according to the particular circumstances of the case, and to be determined upon the rule of compensation to the party injured.'

Again, in Marr v. Western Union, an action ex contractu, the Supreme Court said:

'The damages assessed by the commission of referees is upon the correct basis. The loss resulting from the change in market value was clearly the natural result of the telegraph operator's mistake. Being the natural result of the negligence of the defendant, the law adjudges that it was within the contemplation of the parties. This message was so written that the slightest reflection would enable the operator who undertook its transmission to see its commercial importance, and put him on his guard against error.'

In Telegraph Co. v. Potts, supra, the Supreme Court held on action, which appears to have been ex contractu, that the undisclosed principal of the sender of a message could not recover damages for mental anguish sustained by her, because it could not have been within the contemplation of the contracting parties, i. e. the sender and the telegraph company, that such damages might flow from a breach of the contract.

So we think in the instant case that, if the action is treated as being ex contractu, there can be no recovery of the $100 for which the judgment was rendered in the court below, because there was nothing in the message itself (plaintiff does not claim that the defendant was given any other information than that contained in the message itself) which put the defendant on notice that plaintiff would suffer pecuniary damages from a breach of the contract to correctly and promptly deliver the message to him, and the damages for which the $100 judgment was rendered could not have been within the contemplation of the parties.

But the suit is not ex contractu, and, as has been stated, the plaintiff has sued as the 'aggrieved party' under Shannon's Code, § 1838, which is likened to an action ex delicto or in tort, and, as has also been said, we think the plaintiff has proved with clearness and certainty that, if the message had been delivered to him promptly on the evening of May 20, 1923, he could and would have gone to Bristol and performed the two operations, and would have been paid the $150, and his expenses.

We quote again from Wadsworth v. Telegraph Co., supra: 'In an action for tort, the injured party may recover such damages as result proximately and naturally from the wrongful act of the defendant.' This would indicate that, if the damages are the proximate and natural result of the negligent failure to promptly deliver the telegram, it does not matter whether or not they were within the contemplation of the contracting parties."

Thus far the Court of Appeals has observed the distinction between the rule of recovery in actions ex contractu and those ex delicto. However, the court proceeds as follows:

"It is true that in the earlier cases the court spoke of an action under this section of Code as being one in tort or ex delicto, but in Telegraph Co. v. Potts, supra, the court was careful, in describing such an action, to speak of it as an action 'equivalent to one for negligence,' and said:

'The measure of damages, whether the suit be on the contract or in tort, is, in this class of cases, substantially the same, viz.: (1) If there has been a violation of the contract, or a breach of duty on the part of the company, the aggrieved party is entitled to recover, in any event, nominal damages. (2) Such damages as may be fairly and reasonably considered as arising naturally, in the usual course of things, from the breach of the contract or the violation of public duty, or such damages as may be reasonably supposed to have been within the contemplation of both parties, at the time they made the contract, as the probable result of a breach of it. The company may learn the grounds on which it may base an estimate of, or anticipate, the damages that may result or naturally flow from a failure to promptly deliver the message, either from facts communicated to its agent dehors the message or from the fact of the message itself.'

In view of this statement of the Supreme Court, we think we are bound to hold, even though this action is by the aggrieved party under Code, § 1838, that the damages for which judgment was rendered in this case are not recoverable because it could not have been within the contemplation of both parties that such damages would likely flow from a failure to promptly deliver the message."

The learned Court of Appeals thereupon concludes that plaintiff was entitled to nominal damages only, and, reversing the judgment of the circuit court, awards a recovery against the telegraph company of $1 and the costs of the lower court.

The question thus presented is one of notice; it being contended for the telegraph company and found by the Court of Appeals that the rule limiting recoverable damages to such as may be reasonably supposed to have been within the contemplation of both parties has application to the sendee of a telegram. This precise question has not heretofore been passed upon in any reported case in this state.

It will be observed that Telegraph Co. v. Potts, supra, was not a suit by a sendee under the statute, but was rested upon breach of contract, the court holdin...