W. Union Tel. Co. v. Brown

• Decision Date: 15 December 1882
• Docket Number: Case No. 1265.
• Citation: 58 Tex. 170
• Parties: WESTERN UNION TELEGRAPH CO. v. JOS. H. BROWN.
• Court: Texas Supreme Court

58 Tex. 170

WESTERN UNION TELEGRAPH CO.

v.JOS. H. BROWN.

Case No. 1265.

Supreme Court of Texas.

Dec. 15, 1882.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

Stemmons & Field, for appellant.

I. The court erred in sustaining exceptions to that portion of appellant's answer which sought to limit the amount of appellant's recovery by reason of agreement at time of delivery of said message, and by reason of the contract relied on in said answer. That appellant could thus limit its liability is, we think, fully settled by the following authorities: Thompson on Negligence, vol. 2, pp. 835, 836; note 1, sec. 4, pp. 839-40; Allen's Telegraph Cases, pp. 85, 196, 273, 306, 345, 463, 663, 708; Scott & Jarnagin, Law of Telegraphs, ch. 2, pp. 104, etc.

… IX. The court erred in refusing to charge the jury as asked by appellant in special charge No. 1, that, “unless you believe from the evidence that defendant has done plaintiff a wrong, as claimed by plaintiff, and unless you further believe from the evidence that plaintiff has suffered damage from the doing of said wrong, you will find for the defendant.” Western Union Tel. Co. v. Bertram & Moeler, by Commissioners of Appeals.

X. The court erred in refusing to charge the jury, as requested by appellant, “You are further instructed that there was no evidence of malice, ill-feeling, or intentional wrong done by defendant to plaintiff; the measure of damages in this case is the actual damages sustained by plaintiff; that is, the amount of actual loss in money, sustained by plaintiff, directly traceable to the wrong done him by defendant.” Hays v. H. & G. N. R. R. Co., 46 Tex., 272;Wardrob v. Stage Co., 7 Cal., 118;Mendehlson v. Anaheim L. Co., 40 Cal., 657;Turner v. North Beach R. R., 34 Cal., 594;Hill v. The N. O. & G. W. R. R. Co., 11 La. Ann., 292; Milwaukee & Miss. R. R. v. Finning, 10 Wis., 330; Illinois Cent. R. R. Co. v. Hammer, 72 Ill., 347.

Ball & McCart, for appellee.

I. The court did not err in overruling defendant's general demurrer to plaintiff's petition. The petition sets up and discloses a transaction between plaintiff and defendant alone. It alleges that plaintiff delivered the message to defendant, and that defendant then and there accepted and received the same from plaintiff for transmission for certain hire and reward paid by plaintiff. It nowhere discloses any privity between Tidball, Van Zandt & Co. and the defendant. It avers that defendant, contriving and intending to defraud and injure plaintiff, not Tidball, Van Zandt & Co., etc. Hutchinson on Carriers, sec. 723.

II. The court did not err in sustaining plaintiff's demurrer to that part of defendant's answer which set up and relied on the alleged special contract, limiting the amount of damages recoverable from defendant for delay, mistake, or failure to transmit the telegram. The action is ex delicto, and charges defendant with gross and wilful neglect of its duty, and a telegraph company will not be allowed to limit its liability for its acts of gross negligence; besides, defendant does not allege that said contract was made with plaintiff, but with Tidball, Van Zandt & Co. Thompson on Negligence, vol. 11, p. 835; notes, § 1, p. 839, § 4, pp. 840 to 845; Scott & Jarnagin on Tel., secs. 142, 143, 205, 260, 261, 262, 265 and 266; W. U. Tel. Co. v. Weiting, Texas Ct. of App., Opinion by P. J. White (also see 17 Wall., 357);True v. Tel. Co., 11 Am. Rep., 156, and notes thereto (60 Me., 9); Cande v. Telegraph, 8 Alb. Law Jour., 293; Tyler v. W. U. T. Co., 14 Am. Rep., 38 (60 Ill., 421); Same v. Same, 24 Am. Rep., 279, and notes thereto (74 Ill., 168).

III. Corporations are liable to exemplary damages, and such damages may be recovered against them in a proper case. Where, in an action ex delicto, there is evidence which tends to show that defendant was guilty of either wilful misconduct or of such entire want of care as would raise the presumption of a conscious indifference to consequences, it was proper for the court to charge the jury that if they believed from the evidence that such was the case, they might assess exemplary damages against the defendant. Exemplary damages are not confined to compensation for actual injuries, but are assessed for the purpose of prevention of a repetition of the wrong and by way of punishment to the wrongdoer, and if the circumstances in evidence satisfy the jury that a corporation has ratified, or connived at, the gross negligence of its agents or servants, they have the right, and it is their duty, to award the party injured by such gross negligence a verdict for exemplary damages against such corporation. Hays v. H. & G. N. R. R., 46 Tex., 280;6 Tex., 352;Smith v. Sherwood, 2 Tex., 460;9 Tex., 20;27 Tex., 620;Milwaukee & St. Paul R'y v. Arms, 91 U. S., 489; Scott & Jarnagin on Telegraphs, secs. 69, 418; Thompson on Carriers, pp. 393-4, 575; Thompson on Negligence, p. 857, as to receiving clerk; Perkins v. Missouri R. R., 55 Mo., 201;57 Mo., 17;66 Mo. 536;Goddard v. Grand Trunk R. R., 57 Me., 202-223;19 Ohio St., 157; Id., 162; 47 N. Y., 282;62 Me., 84;57 Ill., 59; R. R. v. Hurst, 36 Miss., 660;Hopkins v. R. R., 36 N. H., 9; 1 Redfield on Railways, 515 et seq.; Bawser v. Lane, 3 Met. (Ky.), 311;38 Ind., 116;27 Md., 277;11 Nev., 250;55 Mo. 201;66 Mo., 536.

BONNER, ASSOCIATE JUSTICE.

On December 4, 1880, the appellee in this case, Joseph H. Brown, to meet and protect his acceptance for $5,679.93, in favor of Dymond & Gardes of the city of New Orleans, which matured on the 6th of the same month, procured from the banking house of Tidball, Van Zandt & Co., of Fort Worth, “telegraphic exchange” on New Orleans. This he did by receiving from Tidball, Van Zandt & Co. the following message:

“FORT WORTH, TEXAS, 12-4, 1880.

To Louisiana National Bank, New Orleans, La.:

Protect Joseph H. Brown's note to Dymond & Gardes, due sixth instant.

+----------------------------------+
                ¦(Signed)¦TIDBALL, VAN ZANDT & CO.”¦
                +----------------------------------+
                

On the same day appellee Brown caused the message to be delivered to the receiving clerk of appellant, the Western Union Telegraph Company, at its office in Fort Worth; and to procure its safe and correct transmission, he caused to be paid to said clerk, not only the price demanded to send the message to New Orleans, but also that demanded to have it repeated, as required by the rules and regulations of the company. The clerk was aware of the importance of the message and promised to have the same promptly forwarded.

It was shown that the usual time required to send a message from Fort Worth to New Orleans was about two hours. It never in fact reached New Orleans, and in consequence the demand of Dymond & Gardes against Brown was duly protested, by reason of which Brown claims that he has been damaged, and for which this suit is brought. The only testimony bearing upon the question of the failure to receive the message in New Orleans was, that the manager and chief operator of the company at Fort Worth, some days afterwards, upon inquiry, informed the clerk of Brown that he could not trace it further than to Dallas, in the adjoining county. It does not appear when the message was sent from the office at Fort Worth, or why, as it was not repeated within a reasonable time to Fort Worth, inquiry was not made in regard to it. Further than this, there was no testimony tending to prove that the defendant company was negligent in selecting competent servants and agents in the first instance; or that knowledge of the above facts was brought home to any general officer representing the company in its corporate capacity; or that after such knowledge, it approved or adopted the negligence of the operator.

The court below in the general charge instructed the jury both upon the issues of actual and exemplary damages, and upon the latter issue refused certain instructions asked by the company. The jury returned a verdict for plaintiff for $4.50 actual damages and $5,000 exemplary damages. From the judgment rendered on this verdict, this appeal is prosecuted.

There are fifteen assigned errors. Those relied on relate to the question of exemplary damages.

The delivery of the message to the agent of the company and his receipt of the same, and of the price charged for transmitting it, constituted a contract between Tidball, Van Zandt & Co., for the use of plaintiff Brown, and the defendant company. The message was one which, by the terms of this...