Fergusson v. Anglo-American Telegraph Co.

Opinion by Mr. Justice McCollum, This was an action for damages caused by the failure of the defendant to deliver promptly a telegraph message written in cipher. The evidence was to the following effect: Plaintiffs, on March 15,1890, sent two cable messages in cipher, addressed, to “ Octorara,” “ Liverpool,” the first of which ordered the purchase of fifty tons of soda ash, and the second ordered one hundred tons of the same, subject to shipment on the steamer Kingsdale. The first message was duly delivered to plaintiffs’ agents, the second was not delivered until six days afterwards. The steamer Kingsdale had sailed in the meantime. The delayed message reads as follows : “ Bewail boarish, bewail bluster, provided steamer Kingsdale ” and was interpreted to mean “ purchase for our account 50 tons jarrow 55-56 per cent soda ash, 50 tons jarrow 48 per cent soda ash, provided shipment can be made per steamship Kingsdale.” The plaintiffs had contracted for a resale of the entire one hundred and fifty tons, and when the one hundred tons failed to arrive they were compelled to pay a higher price to fill their contract, and thereby lost $892.72. The plaintiffs claimed that this was the measure of damages, but the court confined it to the sum paid for transmission of the message. Was this ruling erroneous? It seems that the question now presented has not been decided by this court. It has been frequently considered in many of the courts of our sister states and in England, and the great preponderance of authority is in accord with the ruling of the court below. The [382] rule on this subject is stated in 25 Am. & Eng. Ency. of Law, 842-8 as follows: “ The rule already set out as to the measure of damages, confines the plaintiff’s recovery in actions against the company for negligence, to such as may fairly be supposed to have been in contemplation of the parties, at the time of making the contract. This being true, it follows as a logical and necessary sequence that where the message as delivered for transmission is unintelligible, except to the sender or the addressee, and the company had no information otherwise as to its character and purport, nor of its importance and urgency, the party injured can recover of the company nothing more than nominal damages or at most the price paid for transmission. And this is the rule which has been adopted by the English and American courts almost without exception.” Many decisions of the courts of this country and England are cited as sustaining the rule above stated. The numerous decisions of the courts of many states will be found to be opposed to the decisions of the courts of only three states, those of Yirginia, Georgia and Alabama. Florida has recently reversed an earlier case and thus joined the majority of the states on this question. The reasons advanced in support of the decisions which support the ruling of the court below have been various, the one most commonly applied being the rule of Hadley v. Baxendale, 9 Exch. 341. It is earnestly contended by the appellants that the rule of Hadley v. Baxendale has no application to the case in hand, that the word “contemplate” is there used as contra-distinguishing what is proximate and direct from what is remote and speculative, as in Pennypacker v. Jones, 106 Pa. 237, and Adams Express Co. v. Egbert, 36 Pa. 360. They also call our attention to the fact that the view of Hadley v. Baxendale contended for by the defendant has been unsuccessfully urged upon this court at least twice before, namely, in Telegraph Co. v. Wenger, 55 Pa. 262, and Telegraph Co. v. Landis, 21 W. N. C. 38, and that therefore this question is not an open one. We do not concede that the rule of Hadley v. Baxendale has no application to this case, nor that the decision of this court in Telegraph Co. v. Wenger, or in Telegraph Co. v. Landis, is opposed to the ruling of the court below. The message in Telegraph Co. v. Wenger disclosed to the agent of the company the nature of the business to which it related, and there [383] was Tincontradicted evidence that the sender “ notified the operator that he would look to the company for damages if they failed in transmitting the message.” In Telegraph Co. v. Landis there was enough on the face of the message “to indicate to the operator that it referred to sheep, to be shipped to Philadelphia and their price.” It was a case not of delay but of error in transmission, and Paxson, J., speaking for this court said: “It seems reasonable that where damages are claimed for mere delay in delivery, the face of the telegram ought to contain something to put the company on its guard. A delay of a day or even a few hours, might cause a heavy loss.” This suggestion is applicable to the case now before us and in harmony with the view taken in Abeles v. Western Union Telegraph Co., 37 Mo. Appeals, in which the court said: “Aside from the reasons which support the rule of damages in Hadley v. Baxendale, there is here a question of public policy to which we could not shut our eyes if we were in doubt upon the question. Upon any other rule, where a cipher dispatch is delivered to a telegraph company for transmission, and not translated to them, and there is a delay in delivering it or a total failure to deliver it, the door is open tó unlimited fraud upon the company. The evidence of its meaning is entirely in the breast of the sender and person to whom it is sent. They may construct any meaning they choose, and upon the meaning thus constructed they may, by evidence which the company will be powerless to rebut, construct any fabric of facts on which to build an action for damages which they may see fit.” That the measure of damages contended for by the appellants might produce such results is obvious. Under it a telegraph company may receive for transmission a cipher message which on its face is absolutely unintelligible to them, and was intended by the sender to be so, and for the slightest delay in transmitting it they may be charged with damages which cannot reasonably be supposed to have been in the contemplation of both parties when they received it. Surely such a message furnishes no tangible ground for an inference that it relates to an important business transaction, or that the slightest delay-in the delivery of it might subject the company to liability for such damages as are claimed in this case. In Candee v. Western Union Tel. Co., 34 Wisconsin 471, Dixon, C. J., said: “It cannot be said [384] or assumed that any amount of damages or pecuniary loss or injury will naturally ensue or be suffered according to the usual course of things, from the failure to transmit a message, the meaning and import of which are wholly unknown to the operator. The operator who receives, and who represents the company, and may for this purpose be said to be the other party to the contract, cannot be supposed to look upon such a message as one pertaining to transactions of pecuniary value and importance, and in respect of which pecuniary loss or damages will naturally arise in case of his failure or omission to send it. It may be a mere item of news, or some other communication of trifling or unimportant character. Ignorant of its real nature and importance, it cannot be said to have been in Ms contemplation at the time of malting the . contract that any particular damage or injury would be the probable result of a breach of the contract on his part.” To subject the company to the same liability for mistake or delay in the transmission of such a message that it might be subject to for a like mistake or delay in the transmission of an intelligible message would open the door to the perpetration of fraud, and disregard the well settled rule of Hadley v. Baxendale. We find nothing in Adams Express Co. v. Egbert or in Pennypacker v. Jones which can be considered as a repudiation or qualification of that rule, or in the way of its application to the case at bar. For the reasons above stated we concur in the' ruling of the court below. Judgment affirmed.