Welsh v. Western Union Telegraph Co.

I am in full accord with the conclusion of Mr. Justice Taylor that respondent's recovery must be limited to the sum of $80.00, which represents loss of commissions on the sale of two cars of rice.

The message was received for transmission subject to the usual stipulation that "the Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing to the company within sixty days after the message is filed with the company for transmission."

It is conceded that this is a valid and binding stipulation. The only claim presented by respondent to appellant within the time specified, after identifying the message and stating the negligence complained of, contained the following with reference to the nature and extent of the damages sustained: "I claim the loss on sale of two cars of rice, containing 400 pockets each, total of 800 pockets of rice at 10 ¢ per pocket, rate of brokerage paid by above rice mill — $80.00." The additional elements of damage now claimed to the effect that respondent lost time and effort expended in working on the incorrect quotation and that his business standing with the trade was damaged were not disclosed to appellant until this action was commenced in April, 1941.

Under the foregoing circumstances, I think the respondent is restricted to damages growing out of loss of commissions, which is the only element of damage claimed within the sixty-day period, and under this stipulation is precluded from thereafter asserting damages resulting from injury to his business or business standing. The rule appears to be well established that there can be no recovery for subjects of damage not included in the claim presented. The precise question has been decided by the Courts of Texas and Arkansas in accordance with this conclusion.Western Union Telegraph Co. v. Murray,29 Tex. Civ. App. 207, 68 S.W. 549; Western Union TelegraphCo. v. Moxley, 80 Ark. 554, 98 S.W. 112; Western UnionTelegraph Co. v. Nelson, 86 Ark. 336, 111 S.W. 274.

In Toale v. Western Union Telegraph Co., 76 S.C. 248,57 S.E., 117, 119, this Court quoted with approval the following from Western Union Telegraph Co. v. Murray, supra: "We find no decision on the question whether or not, after a claim has been presented and the 90 days have expired, the party can recover for subjects of damage not indicated or suggested by the claim. We are of the opinion that he cannot." There was also quoted with approval the following from 27 Ency. of Law, 1048: "The claim presented should set forth fairly the nature and extent of the claimant's demands. While he will not be limited to the amount of damages set up in his claim, he cannot recover for subjects of damage not mentioned therein."

No case has been cited by respondent's counsel sustaining a construction of this stipulation contrary to that herein expressed. The case of Western Union Telegraph Co. v.Czizek, 264 U.S. 281, 44 S.Ct., 328, 68 L.Ed., 682, so strongly relied on by respondent's counsel, did not pass upon the question under consideration. Respondent's counsel say that this view places the customer of a telegraph company "under a very heavy burden in filing his written claim." This may be true, but we are not at liberty to add to or modify the stipulation in question.

Turning now to the question of damages, the record relating to that question presents a rather unusual situation. Respondent sought to show that his commission on Emperor Patna rice during the year preceding the erroneous transmission of this message were $536.50 and during the following year were only $12.50, or a loss of $524.00. In other words, respondent offered to prove that appellant's error caused a drastic reduction in his sales of Emperor Patna rice which resulted from his customers "stocking up" on other brands of the same grade and refusing to go back to the Emperor Patna brand of rice which they had previously bought from him. All of this testimony was excluded by the trial Judge on the grounds that these damages were not alleged in the complaint and were "remote and speculative". Respondent's counsel was only permitted to offer this testimony in the absence of the jury. Respondent's counsel also offered to show that as a result of the error in this telegram, respondent was embarrassed with his customers. This testimony was likewise excluded. The objection of appellant's counsel to testimony tending to show that respondent was never able after this incident to sell this brand of rice to a certain customer who had regularly purchased it previously was also sustained. A careful reading of this record shows that all testimony relating to damages other than that relating to loss of commissions was excluded by the trial Judge. Notwithstanding the exclusion of this evidence, the trial Judge submitted these other subjects of damage to the jury. To illustrate, the jury was charged in part as follows: "If you find it a fact that he (the plaintiff) was on account of this transaction and the effort, as he alleges he did, to sell his commodity on the strength of the information he got from this telegram, and it resulted to him in embarrassment in his business and it caused him to lose his time and effort, then you have a right to determine what amount of money in your opinion would be proper to compensate him for the loss."

In view of the foregoing circumstances, there was no testimony before the jury which would warrant a recovery of damages in excess of $80.00. I prefer not to intimate any opinion as to whether, apart from the sixty-day stipulation and the rulings of the trial Judge, damages in excess of that amount could have been recovered.

MR. CHIEF JUSTICE BAKER and MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES concur.