Western Union Telegraph Co. v. Shotter

Jackson, Chief Justice.

This action was brought by Shotter & Co. against the Western Union Telegraph Company, to recover damages-for losses occasioned by errors of the company in the transmission ■ of messages, whereby the plaintiffs were-made to offer to certain parties in Chicago and Indianapolis car loads of turpentine at a much lower figure than the sum intended to be offered, which offer, thus by palpable error sent, was accepted; the plaintiffs were bound! by the offer, and furnished the turpentine at the lower' price, and were thus damaged to the amount of difference between the lower price received and the higher price-which the turpentine was worth. Under the charge of the court, the jury returned a verdict giving damages to the extent of the difference between the price actually sent by the company and that written and delivered lo the company by the plaintiffs to be sent. A motion was made for a new trial on various grounds therein alleged, and the denial of that motion on those grounds is the error .assigned.

1. A telegraph company is responsible for the gross negligence of its agents in transmitting messages, in damages, to'the party injured thereby, and the court did not -err in overruling the demurrer. 58 Ga., 433; 68 Ib., 300.

2. An amendment correcting the error in language of •the telegram set out in the declaration, or in figures and conditions thereon, was properly allowed, so as to cover the objection to admissibility of the telegrams as set out. When amended, the objection was gone. Our amendatory statutes are very broad. Code, §3479. No new cause of •action was set out, and the amendment was really hardly material, except technically to harmonize the allegata and frobata.

3. It is wholly immaterial what condition it put upon its printed heading'of messages, so far as its liability for negligence is concerned. It is bound to discharge its duty to the public with skill and diligence, and to be accurate in the discharge of such duty, even if to repeat the message 'be necessary to insure accuracy. 68 £?«., 300. In the case at bar it was guilty of the very grossest negligence. It made a palpable and material mistake in two telegrams ■sent by the plaintiffs the same night; in one of which it 'made “ sixty-four” read “ fifty-four,” and in the other it ’made “sixty-four” read “sixty,” thus leaving out one word, though charging for ten, and sending but nine words. ’That the defendant is liable for damages, under the decisions of. this court, needs no argument, and that it cannot defend by an effort to limit that liability at the expense of the diligence which public policy demands, is as little subject to cavil or'question.

4. What, then, is the measure of the damages to which the plaintiffs are entitled for this gross negligence í

The answer is, inst, what Iha-gdalntiff lost thereby.

What did the plaintiff lose ? We do not see that he lost the difference between what he actually took from his correspondents in Chicago and Indianapolis and what he really had intended to offer the turpentine to them at, because there is no evidence that they would have given him what he had intended to offer it at, and would have offered it at but for the gross negligence of the company. The measure of damages is the difference between what he took from the correspondents at Chicago and Indianapolis and what he could have got at the time the erroneous dis patch was delivered, from them or from any other pur' chaser in Chicago and Indianapolis; or in- other words, the difference between what he took from them and the market pries at that time in Chicago and Indianapolis, together with the toll for sending the dispatches and the cost of exchange. It is presumed he could have got the market price in those cities, and as, by reason of this mistake, he settled with his correspondents at what the erroneous telegram offered to sell the turpentine to them, we think that the company is liable for the difference between the sum at which he did settle and the market price of the turpentine in those cities.

5. But the plaintiff in error raises the question that the defendant in error, plaintiff below, was not obliged to let the turpentine go at that price; _ that he was not bound by the mistake of the telegraph operators, and voluntarily let the turpentine go too 'low. Whether the telegraphic operator be the agent of the sender of a dispatch, so as to bind him, is a debatable question in the courts, the English authorities being to the effect that he is not; and the American mainly that he is. We agree with the American doctrine, at least to the extent that commercial transactions being now conducted to so great an extent through the telegraph, a merchant would lose business and credit if he did not settle in accordance with the offer actually made, though by mistake of the agency he used to convey it, and when he does so settle in good faith, and is induced to do so by the negligence of the telegraphic company, through its servants, that company should respond to him in damages, whether absolutely bound by his contract or not; and that the measure cf his recovery from the company should be as stated above.

The English authorities seem to rest on the connection of the telegraphic lines there with the post-office, and to go on the principle that the government is not responsible for the negligence of a clerk. See note to Verdin Brothers vs Robertson, Allen’s Tel. Cases, 697-699, and Henkel vs. Pope, Ib., 456, 457, note. And as in this country the company is a private corporation, acting as a bailee or agent or carrier, to transmit offers to sell and answers to buy, it would seem that both sides of the water may be held not to collide in their judgment on the law.

For American authorities, see Allen’s Tel. Cases, 157, 330, 699, note; 40 Wis., 431.

For English authorities, see Allen’s Tel. Cases, 567, 697.

For summary of cases bearing on measure of damages, see 27 Am. R., 485; Allen’s Tel. Cases, 653 to 663, in a note to Baldwin vs. U. S. Tel. Co.

Inasmuch as the court charged the jury that the measure of damages in the case was “ the difference between the rates which the telegraph company gave and the price which was offered,” evidently by the seller, and there is no evidence that the purchasers at Chicago and Indianapolis would have giveii the price offered, or what was the market value or price at the time, either at Chicago or Indianapolis, and the jury found according to that charge, and as we hold that the measure of damages is the difference between the price offered by the error of the telegram and the market value at those points; that is, what the seller could have got there, we are constrained to grant a new trial, on the error in respect to the measure of damages alone.

Judgment reversed.