Western Union Telegraph Co. v. Aubrey

• Citation: 33 S.W. 1063,61 Ark. 613
• Parties: WESTERN UNION TELEGRAPH CO. v. AUBREY
• Decision Date: 01 February 1896
• Court: Supreme Court of Arkansas

33 S.W. 1063

61 Ark. 613

WESTERN UNION TELEGRAPH CO. v. AUBREY

Supreme Court of Arkansas

February 1, 1896

Appeal from Phillips Circuit Court GRANT GREEN, JR., Judge.

STATEMENT BY THE COURT.

This was an action brought by Aubrey against the Western Union Telegraph Company to recover damages alleged to have been sustained by him, by reason of an error in transmitting a cipher telegram from Cowen & Co. to him.

The complaint alleges that in April, 1893, Cowen & Co. delivered to the Telegraph Company at Memphis, for transmission to Aubrey at Helena, the following telegram: "Mitchell has eat bluebird tinged staple on factor's table here. We find ten rough deep stains, and ten good grade white cotton. Leaving out these twenty, we can use remaining blood-shed ink alack f. o. b., Helena, provided we are not known in the transaction, and there is nothing under abat rising. Important not to mention us in the matter." That Cowen & Co. paid the usual and customary charges for such telegram. That the message received by Aubrey differed from that sent by Cowen & Co. in substituting the word "alike," meaning 8 1/2 cents, for "alack," meaning 7 5/8 cents. That the meaning of the telegram as sent was as follows: "Mitchell has ninety-five bales tinged staple on factor's table here. We find ten rough deep stains and ten good grade white cotton. Leaving out these twenty, we can use remaining seventy-five May shipment 7 5/8 f. o. b Helena, provided, we are not known in the transaction, and there is nothing under inch and quarter. Answer immediately. Important not to mention us in the matter." That the message as received by Aubrey meant the same thing, except that the cotton could be used at 8 1/2, and not at 7 5/8, as it was written by Cowen & Co. That on the day after the telegram was received, and before Aubrey learned of the error in transmitting it, he purchased forty-four bales of cotton at 7 9-16 cents, and thirty-three bales at 7 1/2 cents; that Cowen & Co. refused to take it at 8 1/2 cents, and Aubrey held it from April 7 to April 14, when he sold it to A. N Tanner for 7 1/4 cents. That the error was due to the negligence of the Telegraph Company, and Aubrey was damaged $ 175.

The answer denies that on the day named in the complaint, or any other day, C. C. Cowen & Co. delivered to defendant the telegram alleged to have been delivered for transmission to plaintiff; denies that it transmitted another or different telegram, as alleged in the complaint; denies that plaintiff purchased seventy-five bales of cotton, or any part of it under instructions contained in the telegram, or that he was damaged thereby in the sum of $ 175, or any other sum.

Upon the trial of this cause, the following interrogatories were upon motion of the defendant, submitted to the jury, to-wit: "If you find that the plaintiff bought seventy-five bales of cotton, from whom do you find, from the evidence, he bought the cotton, and what price did he pay for same per pound?" The jury found generally for the plaintiff, and assessed his damages at one hundred and seventy-one dollars. In answer to the interrogatories, it found that 39 bales were bought from Higgins at 7 9-16 cents, 31 bales from Clifton at 7 1/2 cents, and 5 bales from Hornor at 7 9-16 cents per pound.

The appellant filed a motion for a new trial, which was overruled, and, to reverse the judgment, he appealed to this court.

Judgment reversed and remanded.

Rose, Hemingway & Rose, for appellant.

1. The court erred in its instructions. For a failure to correctly transmit a message, a telegraph company is liable only for such damages as arise naturally from the breach of the contract, or such as may reasonably be supposed to have been contemplated by both parties, when the contract was made, as the probable result of the breach of it. 53 Ark. 434; 154 U.S. 29, 33; 68 F. 137; 60 N.Y. 198; 34 Wis. 471-9; 21 Minn 155, 161; 16 Nev. 222; 9 Ill App. 587; 61 Tex. 452; 60 Col. 579; 37 Mo.App. 554; 8 Bis. 131-3; L. R. 1 C. P. D. 326-8; 14 So. 1.

2. There is no evidence to sustain a verdict for more than nominal damages. He could have delivered the cotton to Cowen, and still made a profit, and hence he was not damaged at all.

Jno. J. & E. C. Hornor, for appellee.

1. It is not true that, unless the interest of the sendee appear on the face of the message, no damages will result from negligent transmission. 53 Ark. 434. That may be the rule in England, but not in this country. 3 Suth. Dam. 314; 25 A. & E. Corp. Cases, 559.

2. The rule applied in Hadley v. Baxendale, and approved in 53 Ark 434, is the rule announced by the court below in this case. 1 L. R. Exch. 177. The telegram itself showed on its face that...