Thorp v. Western Union Telegraph Co.

BROADDUS, P. J. — This is a suit against the defendant company for failure to deliver a telegraph message as delivered by the plaintiff. On the 29th day of October, 1902, the plaintiff received from the hands of the defendant the following message: “Sioux Falls, S. D., Oct. 29, 1902. “O. Thorp, Weston Mo. “Give price — five cars number one cold storage apples. “B. C. McCrossan Fruit Co.” On the same day in answer to said telegram, the plaintiff delivered to the defendant for transmission and delivery the following message: “Weston, Mo., Oct. 29, 1902. “To B. C. Crossan Fruit Co., Sioux Falls, S. D. “Two' fifteen largely Ben Davis, fifth Willow Twig, few Cano Missouri Pippin. “C. Thorp.” The latter message when delivered read “two fifty” instead of “two fifteen,” as contained in the original. On receipt of this message, the fruit company telegraphed plaintiff that his price on his apples at $2.50 per barrel was too high and bought apples elsewhere. When the fruit company learned, on October 31, that [402] the price of plaintiff’s apples was $2.15, instead of $2.50 per barrel, its secretary, IT. H. Jones, wrote to plaintiff that he would have taken five carloads of his apples had he received the correct message giving the price of his apples at $2.15; and enclosed the mutilated message he had received. Jones also testified that his company wanted plaintiff’s apples and would have taken the five carloads at the price plaintiff offered them in his message as delivered to the defendant. The plaintiff to sustain his claim for damages, for failure of defendant to transmit and deliver his message as written, introduced evidence to show loss in decay of the apples, and expense of culling and repacking them for market, and that from thirty to sixty days from the date of his message he sold them at a price of less than $2.15 per barrel. The court, at the instance of the plaintiff, instructed the jury that if they found for the plaintiff in making up their verdict they would take into consideration the loss plaintiff sustained by reason of the decay of the apples, for his time and expense in culling and repacking them and for the fifty-three cents paid for the telegram. The jury returned a verdict for $267.50. .The court on defendant’s motion for a new trial set aside the verdict for the error in giving said instructions as to the measure of plaintiff’s damages. From this action of the court in setting aside the verdict and granting a new trial plaintiff appealed. The action of the court in sustaining the motion for a new trial was proper. We cannot see upon what theory the defendant would be chargeable with the decay of the apples or the labor of culling and repacking them. Some of them were kept for a month and others two months after the date of said message: in the meantime they deteriorated in quality by reason of decay and had to be reculled and repacked. There is no good reason why defendant should be charged with this loss. The [403] proper measure of plaintiff’s damages was the difference in the market price of the apples at Weston, the place of delivery, and the price the B. C. Crossan Fruit Company was willing to pay for them. In other words, at what price could plaintiff have sold them? Suppose he could have sold them for a price equal to that he offered them to the fruit company, it would have been his duty to have done so. His damages in that event would have been measured by the cost of the telegram alone. The proper rule is stated in Holly v. Railway, 34 Mo. App. 202. The defendant contends that the action of the court can be upheld on ,the ground that plaintiff was only entitled to recover for the costs of the telegram, or otherwise that under the facts he was not entitled to special damages of any kind. On this question many cases have been cited by the respective parties, which we do not deem it necessary to review, as each one is predicated on facts peculiar to itself. But it is sufficient to say that special damages will not be awarded where they are of. a remote and speculative character. But it was well said in Smith v. Telegraph, 83 Ky. 104, that “The line between the proximate and remote damages is exceedingly shadoAvy; so much so, that one fades away into the other, rendering it often very difficult to determine whether there is such a connection between the wrong alleged and the resulting injury as to place them, in contemplation of law, in the relation of cause and effect.” Where a carrier negligently delayed to transport and deliver goods intrusted to him, he was held liable in damages for the difference in their value when and where they ought to have been delivered, and their market value at the same place on the day when they were delivered. “This was held to be the measure of damages, because such a change in value was the direct result of the delay in performing the contract, and might well be supposed to have been in contemplation of the [404] parties when the contract was made.” [Cutting v. Railway, 13 Allen 381.] The same rule was applied to a failure of duty on the part of a telephone company to deliver a message: [Squire v. Telegraph Co., 98 Mass., Beale’s Cases on Damages, 135.] It would be a burdensome task to cite the numerous cases in the Missouri Reports similar in principle, wherein shippers have been allowed special damages from carriers for negligent delay in the transportation and delivery in market of cattle and other animals. The evidence shows that the plaintiff’s damages were not merely speculative and contingent. In the first place, the fruit company wanted to buy his apples and requested to know his price. He offered them at a price at which the company was willing to take them and would have bought them had the plaintiff’s message been delivered correctly. In other words, plaintiff had a purchaser ready and willing to buy at his price and a sale was only prevented through the negligence of defendant in the transmission of his message. The damage plaintiff suffered was the direct consequence of defendant’s negligence. The case is similar in principle to that of Harper v. Telegraph, 92 Mo. App. 304. The defendant further contends that plaintiff was not entitled to special damages by reason of his failure to present in writing to defendant his claim for damages within sixty days after his. message was filed with the company. These provisions in contracts are held to be reasonable and therefore enforceable. [Smith-Frazier Boot & Shoe Co. v. The Telegraph Co., 49 Mo. App. 99.] the defendant’s contention in that respect is sustained. For the reasons given the cause is affirmed. All concur.