Judge Hobson’s
dissenting opinion:
It seems to me that the court in this case loses sight ■entirely of substantial justice, and that a simple illustration will show this: Jones is a common carrier in the city of Louisville, whose business is to deliver parcels for compensation. Smith has a bar of gold, of value in the market of $500. He delivers his bar of gold to Jones, to carry it to a jeweler, with a. written offer to sell it to the .jeweler for $500. Jones loses the writing stipulating the price, and thereupon gets up another, offering to sell the bar of gold for $300, and delivers the bar with this writing to the jeweler, who immediately accepts the proposition, and notifies Smith of his acceptance. Smith at once informs him that there is a mistake, and that the price is .$500. The jeweler insists on bis bargain, and .plain Mr. 'Smith, being ignorant of the .intricacies .of the law, is in great trouble. So he goes to see,Jones, and tells him the situation. He asks Jones what he must do, and wants to know if Jones will pay the $200 if he lets t'he jeweler keep the bar of gold at $300. But Jones knows something -of the uncertainty of the law, and says •to Smith: “It ds true, I have been negligent and I have ■gotten you into trouble, but you must get out the best way you can. I can not tell you what to do. My busi*919ness is to carry for people, not to help my customers out of trouble when I get them into it.” Smith then reason» thus with himself: “If I let the jeweler have my bar of gold for $300, Jones will say I ought to have taken legal counsel.” So he goes to a lawyer. The lawyer tells .him. thiait the jeweler got no title to the bar of gold by reason of the false offer delivered by Jones, and that he must take the matter to the courts. Smith realizes that .if he-takes legal counsel, and then does not follow his lawyer’s, advice, Jones may have better reasons for escaping liability than if he had not consulted the lawyer at all. So-he talks to his counsel, and finds that the w'eight of authority supports the advice given him. -He conclude» then to litigate the matter with the jeweler, but the court to whom the case is submitted takes a different view of the matter from his lawyer, and, following the minority of the authorities, decides against Smith and in favor of the jeweler. The result of the litigation is that Smith, loses his bar of gold, and is out $320 in costs besides. He-then sues Jones for damages. Jones says: “You paid ■me forty cents to carry that package to the jeweler, 'amid: that is the limit of my liability; or, at the most, I am only-liable fior $200, which would have been the loss if you had accepted the jeweler’» proposition to pay you the $300.” But says Smith: “I asked you to agree to that before I went to law with the jeweler, and you refused to do so,, and prepared yourself tio escape liability altogether if I accepted the jeweler’s offer; for, if I had done -that, you would have said that the jeweler knew a $500 bar of gold could not be bought for $300 and that the inadequacy of the price was sufficient to put him on notice that there was a mistake. And you would have also said that I had joined hands with the jeweler to rob you. Now, I did. *920no;t know wbait bo do, but bo get a lawyer and make tibe best fight I could, and this I have done. My property is lost. Your negligence is the cause of it, and you should bear the loss.” This is substantially the case that we have. The oinou.it oourt instructed the jury that they ¡should find for appellees the market value of the property they had lost by reason of appellant’s neglect, less so 'much of the loss as appellees might have prevented by the exercise of isuch care and diligence as might reasonably be expected of an ordinarily prudent person under the circumstances. This was more favorable to appellant than the law warranted, for it took awiay from the .jury all power to compensate 'appellees for the expenses they incurred in the litigation which appellant forced them to undertake. The fundamental principle of dam- ■ agesiscompensation for the injury sustained, as the direct result of the negligence complained of. It is a well settled rule in this State that, where there is any evidence, the question is for 'the jury; and I am at a loss to understand the principle of law uplon which appellees’ recovery is . limited rto the amount which ithey would have lost if they had submitted without resistance to the unconscionable demand of Bernstein. For potatoes are a staple. They were selling in the market for $1.75, and Bernstein as a ■dealer, could uio.t but know that the telegram offering to ■.iseil them for $1.07 was a mistake.
Whether appellees used ordinary care in not executing .a bond in the Ohio court, and thus .regaining possession of the potatoes, or in failing to have the property sold at ■once, or in any other step taken or omitted in that action, was a question-for the jury. This was all clearly submitted to the jury by the court below, and they found ¡against ¡appellant on the issue. In determining what was *921ordinary care on the part of appellees we should bear in mind that the litigation was not in Kentucky, but in a. distant city, and that appellees had, of necessity, to rely to a great extent on the legal advice they there received. Wihait the liability would be upon a bond, the difficulty of executing it, 'the necessity of its execution, the probable-delay of the action if the bond was not given, the 'security appellees bad for a wrongful attachment under the Ohio laws, and whether or not it was best, in view of all the■cirteumistances, to trust to this, or to take other steps, were questions that the men on the ground, -of necessity,, had to decide. It has been well said that when the negligence of the defendant is admitted, and it is also admitted that this .negligence bad placed the complainant in a position where loss -may ensue, the court will not be astute to hunt for errors in his conduct, in 'endeavoring to-relieve himself of the disastrous consequences of the defendant’s negligence. The appellees here were interested in getting out of the dilemma in Cleveland at as little loss as possible; for it was certain that they had to pay the piper; and trust to the uncertainties of the future to get their money back. They exercised the same care for1 the protection of appellant that they exercised for themselves, and that other persons in similar controversies in the courts daily exercise. The steps they took were such as are taken in the majority of cases. Appellant bad no. right to demand of them extraordinary diligence, or the assumpton of extraordinary risks. Appellant knew the-situation, and could have taken steps f,or its protection, if it deemed extraordinary steps necessary. I am therefore of opinion that the question of care was properly submitted to the jury, and that the verdict of the jury is right. But if you charge appellees with the entire loss. *922by reason of the deterioration in the potatoes or the delay in selling •them, and subtract this from their total loss, it would still leave them out of pocket an lamioumt practically as large as found by the jury. It seems to me that this is going as fiar as the ends of justice permit, even on the basis assumed by the court. The cost of tihe litigation as to the claim of Bernstein ensued naturally from the 'defendant’s negligence, and was tihe proximate result of it. Such cost is as legitimate an element of damage as 'the cost in defending a title conveyed with warranty, or in attempting to save a cargo from a wrecked vessel. Appellees could not give up their property to Bernstein without contesting his right and look to appellant at all. The cost of this contest which they were forced to make, as their property was seized, is as necessary a part of their legitimate loss as the value of the property itself. No more forceful illustration than the result of this controversy can be given of the illusiveness of legal remedies. But for tihe illusion of an adequate remedy against •the telegraph company, appellees might have charged off to 'tihe loss account the $283 claimed by Bernstein, and sustain no further loss. In their effort to save themselves, they wound up with practically a loss of $900. This they might have charged to their loss account, and been no wloirse off. But wihen they have finished with this case on the basis of recovery laid dowm by the court, and have paid all expenses, they will be still sadder and wiser men. When such a result is worked out as the end of the law, small wonder is it that so many people prefer to trust verdicts of juries for substantial justice. I therefore dissent from the opinion of the court.
Petition for rehearing overruled.