Einbinder v. Western Union Telegraph Co.

30 S.E.2d 765, 205 S.C. 15, 154 A.L.R. 704, 1944 S.C. LEXIS 58

• Court: Supreme Court of South Carolina
• Decided: June 15, 1944
• Docket: 15658
• Status: Published

Opinions

Mr. Associate Justice Tayeor

delivered the Opinion of the Court, with Mr. Associate Justice Oxner filing a Concurring Opinion and Mr. Associate Justice Stukes filing a Dissenting Opinion. The Opinion of the Court follows:

This is an appeal frota a case tried by the Hon. A. W. Holman, Judge of the Richland County Court, without a jury. The complaint alleges that the plaintiff was engaged in the maintenance and operation of a photographic studio in the City of Columbia. The complaint also alleges that the defendant, Western Union Telegraph Company, was at the time involved in the action a common carrier of telegraph messages for hire and that on July 7, 1942, the plaintiff wrote and delivered to the Columbia office of the said defendant a message addressed to Marks & Fuller, Inc., 44 East Avenue, Rochester, N. Y., as follows:

“Send us 10 rolls 3J4 by 250 ft. direct positive paper.”

The complaint further alleges that the plaintiff paid on demand the charge taade by the defendant of 88‡ and that the defendant agreed to transmit such message promptly and accurately to the addressee, but that in disregard a!nd in violation of its duties to plaintiff and in the breach of its contract, the defendant erroneously transmitted the message as follows:

“Send us 10 rolls 3-J4 by 250 ft. direct positive paper.”

The allegations continue that the addressee of the telegram in accordance with the apparent wishes of the sender immediately shipped paper 3j4 ipches in width which the plaintiff immediately returned to the shipper, with the advice that plaintiff’s telegraphic order was for 3% inch film and not 4 3 ¿4, as delivered, and that the photographic equipment of plaintiffs was not adapted to the use of the 3j4 inch paper; that thereafter Marks & Fuller, Inc., advised the plaintiffs that whereas they could have supplied the proper size of paper when the telegram involved was received, that when the information was received as to what the plaintiffs actually required in the way of paper, same was not to be had. Plaintiffs allege that it made efforts to secure such paper from various sources, but was unable to do so and in consequence plaintiffs were forced to suspend operation of their studio for a .period of 30 days, discontinue the services of valuable employees who could not thereafter be reemployed, make a txip to New York and incur the expense of long distance telephone calls, to plaintiffs’ loss and damage in the sum'of $3,000. Proof of these allegations was submitted, the defendant not denying .its erroneous transmission of the telegram either by way of answer or proof, but alleging that the plaintiffs did not present to the defendant any claim in writing within 60 days after the filing of the message and that its damages were limited in any event by virtue of the fact of the unrepeated message rate that the telegram was transmitted at. It was conceded by plaintiffs’ counsel that any liability of the defendant was limited to the sum of $500.00

Judge Holman thereafter filed an order in which he found that the evidence established that the improper transmission of the telegram by the defendant Company was the proximate cause of plaintiffs’ undisputed actual damages of $648-.10 and that the damages suffered by plaintiffs was neither speculative nor special but general damages, readily capable of ascertainment and that they were adequately established by the business records of the plaintiffs. The Court thereupon ordered judgment for the plaintiffs in the sum of $500.00 with costs.

From the above order the defendant appeals on some twelve exceptions. The parties. concede and the trial Court held that motions for nonsuit and directed verdict, and request for findings of fact and conclusions of law by the appellant properly raised before the trial Court the issues posed by the exceptions made on appeal.

In the view which this Court takes of the matter, it is unnecessary to consider any exceptions save those which raise the question as to the type of damages suffered by the plaintiffs and defendant’s liability therefor.'

Even though it be conceded that the damages sufr fered were readily-ascertainable, that they were not speculative, and that they were adequately established by the evidence, this Court cannot find itself in agreement with the holdings of Judge Holman that the damages were general. There is neither allegation nor proof that appellant had any reason to apprehend that its erroneous transmission of the telegram would result in the suspension of business by respondent and, in the absence of such allegations and proof, it cannot fairly be said that such damages are recoverable. General damages are such as might be reasonably expected by the parties to flow from a breach of the contract. We are not prepared to hold that the erroneous transmission of a telegram such as that involved here would reasonably result in the closing of plaintiffs’ business or that such a result was contemplated by either of the parties.

In accordance with the above, such exceptions of the appellant as raise the issue that plaintiffs were not entitled to recover at the hands of the defendant damages of the nature of those discussed herein are hereby sustained and the case is remanded to the trial Court for disposition in accordance herewith. The trial Court did not indicate what items of damage were included in the award of $500.00, merely stating that-it found as a fact that although‘the undisputed actual damages were $648.10, defendant’s liability could not exceed the stipulated maximum of $500.00. ■

Mr. Chiee Justice Baker and Messrs. Associate Justices FishburnE and Oxner concur.