Davis v. Western Union Telegraph Co.

1 Cin. Sup. Ct. Rep. 100

• Court: Ohio Superior Court, Cincinnati
• Decided: October 15, 1870
• Status: Published

Opinion

Storer, J.

We are now asked, as the whole evidence is embraced in the record, to grant a new trial. No complaint is made of the charge of the court to the jury; the only question urged is that the damages are excessive. It is admitted by counsel that the testimony, although conflicting, was fairly left to the -jury, and as it was their province to reconcile it, the court may well suppose they performed that duty impartially; indeed, we can not well conceive of a case where-the sound discretion confided to the jury was more fully required to be exercised.

- "We have examined the -bill of exceptions, and are satisfied the weight of the, evidence was in favor of the plaintiff. The jury, it is said, should not have awarded more damages than the plaintiff could prove he had sustained; and the amount, it is claimed, could not, on the best estimation, be made to exceed $450. This sum, it is claimed, could not be increased by a computation of losses not clearly the immediate result of the defendant’s misconduct. "We admit, as a general rule, that the measure of damages for a breach of contract is the amount of loss really sustained by the injured party, but in the application of this rule a liberal course may be pursued whenever the violation of an agreement is proved to have been willful or causeless on the part of the defendant.

In the case before us, it is in evidence that the plaintiff’s business was not only affected so far as the direct injury he sustained by the neglect to forward the dispatches of his agent from New York to Cincinnati, but his business was finally broken up by the constant irregularities .of the telegrams he ought in good faith to have received. And it is very evident the formation of a company, composed of the officers and stockholders of the telegraph company, whose object was to transact the same business in which the plaintiff had been previously engaged, gave to the defendant every facility successfully to compete with the plaintiff, as they had the control of their wires, and could prescribe, as they did, the rule by which their subordinates, were to be govern'ed,. which appears, to use the language of the superintendent’s order, at all times to give the precedence to those dispatches on which a private mark was affixed.

It is evident that the mere allowance of the amount of loss the plaintiff proved he actually sustained, would not, injustice, remunerate him for the violation by the defendant of its agreement, and the jury might very properly have given an additional sum. This, then, may have been in positive evidence to establish the real damages the plaintiff might have suffered.

The duty of a telegraph company, in the receipt and transmission of dispatches, requires promptitude, impartiality, and good faith on its part. There can' not be any preference permitted, or special favors granted, to any of those who may offer their dispatches for transmission; all are entitled to the same privileges, subject only to priority in time. He who first presents himself is to be first served. On any other theory, a telegraph company may become a perfect monopoly for favored parties; and, what is worse, a close corporation merely, for the benefit of the few to the prej udice of the many.

While holding this view of what the jury might have properly done, and what is the law of the case, we are satisfied the verdict was greatly in excess of the damages the plaintiff really sustained. We think there should be a remitter of ¡$2,000 from the verdict; and if that is assented to by the plaintiff, judgment will be rendered for the residue; if not, a new trial will be granted at defendant’s costs.

Remitter assented to, and judgment entered on verdict.