Daniel v. W. U. Tel. Co.

Walker, P. J. Com. App.— The rule for the measure of damages applicable to common carriers for the transportation of goods, and to telegraph companies in the transmission of messages in a general form, is that laid down in the case of Hadley v. Baxendale, 9 Exch., 341; a rule quite generally accepted as correct, both in England and America, and often quoted or cited in text-books with approval (1 Sedg. Meas. of Dam., 230n, 236n, 237n), and likewise very generally referred to and adopted in the judicial opinions of courts of last resort. The rule referred to is quoted, with the reasoning in support of it, from the opinion delivered by Alderson, B., in the case of Western Union Telegraph Co. v. Weitung, sec. 801, W. & W. Cond. Decisions. The rule itself is thus stated: “ Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may be fairly and reasonably considered either 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 to the probable-result of the breach of it.” In the case of Baldwin v. The U. S. Telegraph Co., 45 N. Y., 750, Allen, J., discussing the rule of law applicable to the measure-of damages for which telegraph companies may be liable, said: “Whenever special or extraordinary damages, such as would not naturally or ordinarily follow from a breach, have been awarded for the non-performance of contracts, whether for the sale or carriage457 of goods, or for the delivery of messages by telegraph, it has been for the reason that the contracts have been made with reference to peculiar circumstances known to both, and the particular loss has been in the contemplation of both at the time of making the contract, as a contingency that might follow the non-performance. In other words, the damages given by way of indemnity have been the natural and necessary consequences of the breach of contract, in the minds of the parties, interpreting the contract in the light of the circumstances under which it was made; and when a special purpose is intended by one party, but is not known to the other, such special purpose will not be taken into account in the assessment of damages for the breach. The damages in such cases will be limited to those resulting from the obvious purpose of the contract. Citing Cory v. Thames Iron Works, 3 L. R., Q. B., 181; Leonard v. N. Y. & B. Tel. Co., 41 N. Y., 544; Messmore v. N. Y. Shot and Lead Co., 40 N. Y. 422; Hadley v. Baxendale, 9 Exch., 341; U. S. Tel. Co. v. Gildersleeve, 29 Md., 232; Griffin v. Colver, 16 N. Y., 493; Landsberger v. Magnetic Tel. Co., 32 Barb., 530. Such limitation of the damages, therefore, must be held to apply with conclusive force to enigmatical cipher telegrams, the meaning of which is a sealed mystery to the operator. In support further of this proposition, it is laid down in 6 Wait’s Act. & Def., 19, on the authorities which are there cited, that “ where the import of a telegraphic message is wholly unknown to the company’s agent to whom the same is delivered for transportation, it cannot be assumed that he had in view any pecuniary loss as the natural or probable result of a failure to send such message; and in such case, upon a breach of the contract to transmit and deliver, the sender can recover only nominal damages, or the amount paid for sending the message.” Citing Candee v. Western Union Tel. Co., 34 Wis., 471; 17 Am. Rep., 452; Beaupre v. Pac., etc., Tel. Co., 21 Minn., 155; S. C., 24 W. R. 949; 45 L. J., P. Div., 682; 1 L. R. Comm. Pleas Div., 326; 17 Eng. Rep., 286; Saunders v. Stewart, 35 L. T. (N. S.), 370. It was assigned as error that the court erred in sustaining special" exceptions to plaintiff’s petition as to exemplary damages. The ground relied on in the petition as a basis for such damages was, that though the defendant was frequently warned of the in com potency and gross negligence and carelessness of the operators in the appellee’s employ, in sending messages contracted to be sent by appellee, it continued said operators in its employment. That prior to the date of the messages in question in this suit, appellant and others had repeatedly called the attention of the appellee to the [458] great losses they'were subjected to by the bad and incorrect services of the appellee. Allegations of negligence in the employment and selection of incompetent operators, thus vague and indefinite, and disconnected with allegations of facts showing acts on their part of a negligent character resulting in losses to the patrons of the company, or of losses incurred therefrom by the plaintiff on previous occasions, cannot, we think, be deemed sufficient to support a claim for exemplary damages. The rule oh this subject underwent discussion in the case of Hays v. H. & G. N. R. R. Co., 46 Tex., 279, and we are of opinion that the plaintiff’s allegations do not bring this case within the principles which are there laid down which entitle a party to claim exemplary damages. We conclude that the judgment ought to be affirmed. Affirmed. [Opinion adopted April 29, 1884.]