Mills v. Western Union Tel. Co.

70 S.E. 1040, 88 S.C. 498, 1911 S.C. LEXIS 147

• Court: Supreme Court of South Carolina
• Decided: April 28, 1911
• Docket: 7884
• Status: Published

Opinions

The opinion in this case was filed on March 21, 1911, but held up on petition for rehearing until

The opinion of the Court was delivered by

Judge Robert Ardrich, acting Associate Justice in place of Mr. Justice Hydrick, disqualified..

This was an action for damages alleged to have been .sustained by plaintiff as the result of the erroneous transmission by the defendant of a message from Eureka Cotton-Mills, Lancaster, S. C., to Jenckes Spinning Company, Pawtucket, R. I., and was commenced by the service of a summons and complaint on the defendant on the 17th day of August, 1907. The cause came on for trial before his Honor, D. E. Hydrick, and a jury, at the October, 1908, term of Court for Lancaster county, and resulted in a verdict for plaintiff, on the 23d day of October, 1908, for $460.75, with interest.

The complaint alleges:

1. That the plaintiff is a corporation under the laws of South Carolina, under the name of Eureka Cotton Mills, alleging the usual power of corporation.

2. That .the defendant is a corporation, under the name of Western Union Telegraph Company, alleging the usual power of corporation.

3. “That the plaintiff was at the times named in the complaint engáged in the manufacture and sale of cotton yarns and other products, and having its places of business at Chester and at Lancaster, in said State, as empowered to do by its charter.

4. “That the defendant is engaged in the business of a telegraph company, of transmitting messages for hire from the said town of Lancaster by wire to Pawtucket, R. I., and from said Pawducket by wire to Lancaster, aforesaid, and is empowered by its charter to engage in said business, and is a common carrier of messages by telegraph for hire between the points aforesaid.

5. “That on the 26th day of October, 1906, the Jenckes Spinning Company of Pawtucket, R. I., sent to this plaintiff, by and through the agency of the said defendant company, a telegram addressed to this plaintiff and reading as follows, to wit: ‘Cannot get firm offer on twenty-fours, but think can land order for one hundred thousand pounds if you can make price twenty-four cents. Customer not inclined to buy more on this market. Wire quick.’ Which -telegram was signed by the said Jenckes Spinning Company, and was on said day duly delivered by the said defendant to this plaintiff.

6. “That in reply to the said telegram, on the same day the plaintiff delivered to the defendant a message to be transmitted to the said Jenckes Spinning Company at Pawtucket. R. I., by wire, reading as follows: ‘Telegram. Will-book twenty-fours single following in consideration of you at twenty-four and a half cents. Best can do;’ said message being signed by the plaintiff and addressed to the said Jenckes Spinning Company at Pawtucket, R. I.; which said message was delivered by this plaintiff to the said defendant at Lancaster, on the day last aforesaid, and accepted by the said defendant for transmission for hire on that day, and that plaintiff paid to the said defendant the charges for transmission of said message as above delivered to it.

7. “That said defendant, not regarding its duty in the premises, negligently and carelessly, and in gross neglect of its said duty, and in violation of its said contract to .deliver the said message, failed to send the said message as intrusted to it for delivery to the said Jenckes Spinning Company, but that the said defendant, in violation of its contract with this plaintiff to deliver the said message- as above given,' care-^ lessly and negligently, and in gross neglect-of its said contract and duty, failed to correctly transmit and deliver the said message as delivered to defendant for transmission; and that said defendant delivered to the said Jenckes Spinning Company at Pawtucket, R. I., a garbled and entirely different and incorrect message, purporting to be sent to them by this plaintiff, and reading as follows, to wit: ‘Telegram. Will book twenty-fours single following in consideration of you. Best can do;’ the said defendant entirely omitting and failing to deliver to the said Jenckes Spinning Company the six words occurring in the said message as delivered for transmission, to wit, the words, ‘at twenty-four and a half cents;’ which words of the said message as delivered for transmission were by the said defendant carelessly and negligently, and in gross neglect of its said contract and duty in these premises, omitted and not delivered as a part of the telegram aforesaid.

8. “That the said message as delivered by this plaintiff for transmission was in reply to the telegram from the Jenckes Spinning Company before recited, and that the meaning of the said message as so delivered for transmission was that this plaintiff would deliver one hundred thousand pounds of the yarn specified at the price of twenty-four and one-half cents per pound, less the usual trade discount of five per cent, and three per cent, if paid in ten days.

9. “That the said message as transmitted and delivered by the defendant, with the alteration thereof by the omission of the six words as aforesaid, became an acceptance of the proposition contained in the telegram of the said Jenckes. Spinning Company for the purchase of the said one hundred thousand pounds of yarns at twenty-four cents, with same discounts as aforesaid, instead of twenty-four and a half cents per pound; and that the said Jenckes Spinning Company immediately, upon receipt of the said garbled telegram so carelessly and negligently transmitted to them by the said defendant, ratified and confirmed the said transaction and made sale of the said yarns to its customers upon the basis of paying this plaintiff the said sum of twenty-four cents per pound for the same, less the usual trade discount as aforesaid, and that by reason of the negligent and careless acts of the defendant in so transmitting the said garbled and incorrect form of message aforesaid, omitting therefrom the words aforesaid, plaintiff became bound to furnish, and did furnish and deliver the said yarns to the said Jenckes Spinning Company at and for the price of twenty-four cents per pound, less the discount as aforesaid, and did furnish and deliver the said one hundred thousand, pounds of yarns to the said Jenckes Spinning Company at said price, and was forced to furnish and deliver the same by reason of the negligent acts of the defendant and in order to prevent still greater loss and damages which might result to this plaintiff if it failed to carry out the offer and contract aforesaid as carelessly, negligently and erroneously transmitted by the said defendant.

10. “That, by reason of the negligent acts and omissions and the carelessness and gross neglect of the defendant in the transmission of the message aforesaid, this plaintiff suffered great loss and damage, in that the price and value of the said yarn was twenty-four and one-half cents per pound; whereas, by reason of the wrongful acts, carelessness and negligence of the said defendant, as aforesaid, this plaintiff was forced to accept twenty-four cents per pound, less the discount aforesaid, and that plaintiff thereby suffered actual loss and damage to the amount of five hundred and sixty and 75-100 ($560.75) dollars, and besides interest thereon from the 8th day of November, 1906.

11. “That this plaintiff duly notified the said defendant in writing of the facts and of the damage aforesaid, on the 8th day of November, 1906, and demanded payment of the loss and damage aforesaid, but that said defendant has hitherto failed and refused to pay the same or any part thereof.

“Wherefore, the plantiff prays judgment for the sum of five hundred and sixty and 75-100 ($560.75) dollars, with interest thereon from the 8th day of November, 1906, the actual damages suffered by this plaintiff by reason of the wrongful acts of the defendant as aforesaid, and for the costs and disbursements of this action.”

The defendant, answering the complaint, alleges:

1. “That it has not knowledge or information sufficient to form a belief as to the truth of paragraphs 1, 3 and 8.

2. “Admits allegations of paragraphs 2, 4, 5 and 6.

3. “Denies allegations of paragraphs 7, 9, 10 and 11, and demands that complaint be dismissed.”

The testimony substantially establishes the material facts of the complaint; in fact, there is little or no difference between the parties upon the substantial facts of the case. The contention is over the law applicable thereto.

Upon the conclusion of the testimony defendant moved for a nonsuit, upon the following grounds:

1. “Because the damage sustained by plaintiff, if any, was not the direct and proximate result of the negligence complained of on the part of the defendant, but was the result of plaintiff’s own voluntary act:

(a) “Because from the evidence it appears that the Jenckes Spinning Company, acting upon a telegram from the Eureka Cotton Mills, which was a mistake, made a contract in its own name, not binding on the Eureka Cotton Mills, which does not give the said mills a right to recover from the defendant, where the said mills voluntarily carried out the contract after notice of the mistake.

(b) “Because the evidence shows that the Eureka Cotton Mills used the defendant company as a means of communication with the Jenckes Spinning Company, which, as a matter of law, does not make the defendant the agent of the said mills, and said mills were not bound to the Jenckes Spinning Company, the receiver of the message, by the terms of the transmitted telegram, in which the defendant negligently omitted certain words.

(c) “Because the evidence established the fact that the plaintiff, before shipping the yarn to the Jenckes Spinning Company, discovered the mistake in the telegram, and its shipment of the yarn thereafter was a voluntary act on its part, and if any loss was sustained thereby the defendant cannot be held responsible therefor.

2. “Because the evidence fails to show that the plaintiff has sustained any damage whatsoever, in that:

(a) “The undisputed evidence of the plaintiff’s own witnesses shows that, even if the telegram in question had been correctly transmitted, the Jenckes Spinning Company would have refused the offer therein contained and would not have purchased the yarn from plaintiff at the rate of twenty-four and a half cents per pound.”

The Court below overruled the motion for nonsuit, and the case was submitted to the jury upon the evidence, who found for the plaintiff the sum of four hundred ninety-seven and 90-100 ($497.90) dollars.

The defendant moved to set aside the verdict and for a new trial, upon the following grounds:

1. “Because the damage sustained by plaintiff, if any, was not the direct and proximate result of the negligence complained of on.the part of the defendant, but was the result of plaintiff’s own voluntary act:

(a) “Because from the evidence it appears that the Jenckes Spinning Company, acting upon a telegram from the Eureka Cotton Mills, which was a mistake, made a contract in its own name, not binding on the Eureka Cotton Mills, which does not give the said mills the right to recover from the defendant, where the said mills voluntarily carried out the contract after notice of the mistake. -

(b) “Because the evidence shows that the Eureka Cotton Mills used the defendant company as a means of communication with the Jenckes Spinning Company, which, as a matter of law, does not make the defendant the agent of said mills, and said mills were not bound to the Jenckes Spinning Company, the receiver of the message, by the terms of the transmitted telegram, in which the defendant negligently omitted certain words.

(c) “Because the evidence established the fact that the plaintiff, before shipping the yarn to the Jenckes Spinning Company, discovered the mistake in the telegram, and its shipment of the yarn thereafter was a voluntary act on its part, and if any loss was sustained thereby the defendant cannot be held responsible therefor.

2. “Because the evidence fails to show that plaintiff has sustained any damages whatsoever, in that:

(a) “The undisputed evidence of plaintiff’s own witnesses shows that, even if the telegram in question had been correctly transmitted, the Jenckes Spinning Company would have refused the offer contained and would not have purchased the yarn from plaintiff at the rate of twenty-four and a half cents per pound.”

The Court refused the motion for a new trial, and passed an order for leave to the plaintiff to enter up judgment against the defendant for the amount found by the jury.

Judgment was duly entered upon the verdict of the jury, and the defendant appealed from the rulings and charge of his Honor, the Circuit Judge, for his refusal to grant defendant’s motion for a nonsuit and from the judgment entered, upon the following exceptions:

1. “That his Honor erred in refusing defendant’s motions for a nonsuit and for a new trial, upon the following grounds:

“Because the damage sustained by plaintiff, if any, was not the direct and proximate result of the negligence complained of on the part of the defendant, but was the result of plaintiff’s own voluntary act:

(a) “Because from the evidence it appears that the Jenckes Spinning Company, acting upon a telegram from the Eureka Cotton Malls, which was a mistake, made a contract in its own name, not binding upon the Eureka Cotton Mills, which does not give the said mills a right to recover from the defendant, where the said mills voluntarily carried out the contract after notice of the mistake.

(b) “Because the evidence shows that the Eureka Cotton Mills used the defendant company as a means of communication with the Jenckes Spinning Company, which, as a matter of law, does not make the defendant the agent of said mills, and said mills were not bound to the Jenckes Spinning Company, the receiver of the message, by the terms of the transmitted telegram, in which the defendant negligently omitted certain words.

(c) “Because the evidence established the fact that the plaintiff, before shipping the yarn to the Jenckes Spinning Company, discovered the mistake in the telegram, and its shipment of the yarn thereafter was a voluntary act on its part, and if any loss was sustained thereby the defendant cannot be held responsible therefor.

2. “That his Honor erred in refusing defendant’s motions for a nonsuit and for a new trial, upon the ground:

“Because the evidence failed to show that plaintiff has sustained any damages whatsoever, in that:

(a) “The undisputed evidence of the plaintiff’s own witnesses shows that, even if the telegram in question had been correctly transmitted, the Jenckes Spinning Company would have refused the offer therein contained and would not have purchased the yarn from plaintiff at the rate of twenty-four and a half cents per pound.

(b) “There is no evidence that the cost to plaintiff of manufacturing said yarn was in excess of the price for which it was sold, to wit, twenty-four cents per pound, and any profits plaintiff may have made on said yarn is merely speculative and not a proper element of damage.

3. “That his Honor erred in ruling upon defendant’s motion for a nonsuit: Tf the Jenckes Spinning Company sent a message to the Eureka Cotton Mills by the Western Union Telegraph Company, the Western Union Telegraph Company was its agent; and when the Eureka Cotton Mills sent a message by the Western Union Telegraph Company to the Jenckes Company, the Western Union was its agent. And if my agent does something that injures somebody else, I am responsible for that injury. If my agent does something negligent, and makes a contract binding upon me, the agent is responsible to me for his negligence.’ The error being that the uncontradicted and undisputed testimony of plaintiff’s own witnesses showed conclusively that in transmitting the message in suit from the Eureka Cotton Mills to the Jenckes Spinning Company the defendant was the agent of the Jenckes Spinning Company, and his Honor should have held, as a matter of law, that the plaintiff was not responsible to the Jenckes Spinning Company for the negligence of the defendant.

4. “That his Honor erred in instructing the jury to award interest to the plaintiff from the date of the complaint. The error being that there was no testimony tending to establish any/áate from which plaintiff was entitled to recover interest.”

The exceptions raised practically three points:

1. That the damages sustained, if any, was not the direct and proximate result of the defendant’s negligence, but was the result of plaintiff’s own voluntary act.

2. That the evidence failed to show that the plaintiff has sustained any damages for which the defendant is liable.

3. That the plaintiff was not entitled to interest from the date of the complaint.

1 The vital question raised by the appellant before this Court is, whether or not one who employs a telegraph company can be held to the terms of a message erroneously transmitted and delivered to the addressee. The exact question has never been decided in this State, and the decisions of other States are in great conflict. The Courts of some States hold that the sender is bound by the terms of the message as delivered, and this view is based upon the theory that the telegraph company is the agent of the sender. Other authorities hold that the telegraph company is the agent of both sender and addressee ; while the English rule, which has been adopted by other of our States, is that as between the sender and addressee the telegraph company is not to be considered an agent of either party, but as an independent contractor, — a common carrier of intelligence for hire,- — and is liable in tort to either party, sender or addressee, for the breach of its public duty. We hold this to be the correct view; both parties have an interest in the message, either may be injured by the failure of the telegraph company to perform its contract; and it is not for the contracting party who is in fault to parcel out the responsibility between the parties for whom it is dealing and decide to which one it will owe responsibility.

2 It is contended that the plaintiff has no cause of action, because it sustained no loss by reason of the failure to deliver the telegram as sent; that it was not liable in any sense to the addressee of the message for the failure of the telegraph company to perform its duty, and that it voluntarily assumed a loss it had not sustained and for which it was not liable, and has no cause of action against the defendant. The plaintiff employed the defendant to transmit this message and paid its reasonable charges for doing so, which brought the defendant into contractual relations with the plaintiff, and if, by reason of its breach of duty'; the plaintiff sustained a loss, either directly to the sendee of the message or by loss of business through its failure to protect its correspondence, or in any other way, as the result of the failure of the defendant to fulfill its contract, the defendant is liable for such damage as the plaintiff sustained by reason thereof.

3 On the question of damages defendant contends that the plaintiff sustained no loss by reason of the failure to transmit the message in the original terms, because, if the mes sage had been correctly transmitted, the Jenckes Spinning Company would not have bought the goods at twenty-four and a half cents per pound. The question of damages was one peculiarly for the jury upon the evidence; and there is evidence that the goods were worth twenty-four and a half cents per pound, and even twenty-five cents per pound, which the plaintiff could not obtain by reason of its having to furnish this large order within a limited time. We think the evidence sufficient to sustain the verdict of the jury on the question of damages.

4 On the question of interest, where the demand is liquidated, or there is no dispute as to the amount in the event of liability, the amount draws interest from the time of demand and refusal, and the allowance of interest only from the commencement of the action is fully as favorable to the defendant as it could demand.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.