Western Union Telegraph Company, Appellant, vs. Hyer Bros., Appellees, 22 Fla. 637

The Chiee-Justice delivered the opiniou of the court: Suit was brought by Hyer Bros, in the Circuit Court of Escambia county against the "Western Union Telegraph Company for damages for non-delivery of a cablegram sent to them at Pensacola by their correspondent and agent at Barbadoes.

The proof showed that the plaintiffs were merchants and ship brokers at Pensacola, and that on the 12th day of September, 1888, they received a cablegram from their correspondent and agent at Barbadoes, as follows: “ Prelate, Tellespont, lambent, speculum, divan, extol,pulpit, rabidy, Greenock, preferred, sluggard, excluded, stevedore,‘scam/ ‘ slam/ ” which being translated meant: “ We grant you refusal for 24 hours. Tellespont, 556 6-100 reg., half hewn, balance deals, £6.15, full freight on beam fillings. U. K., Greenock preferred, £20 gratuity, stevedore excluded.

Commissions in thirds.” Hyer Bros, answered the cablegram as follows: “ To Laurie,-Barbadoes. Wagon, extant, knight, sluggard, polygon,” which being translated meant: “ For United Kingdom, full cargo sawn timber at £6.10s per standard, and £20 gratuity, usual charter.” The agent at Barbadoes answered this dispatch and the answer was received at the office of the Western Union Telegraph Co., in Pensacola, Sept. 14. It contained but one word, “ Punctual.” By the cipher code used by Hyer Bros., and their correspondent it meant: “ We have closed the vessel as per your telegram.” It was never delivered to Hyer Bros.

The offer of II. B. for the charter of the vessel was based on an offer made to them by A. M. McMillan, of Pensacola. Hot receiving an answer to their dispatch and thinking their offer was not accepted they told McMillan that the offer was declined and he secured another vessel. On October 2d the vessel arrived at Pensacola, bringing a letter from their agent at Barbadoes containing a copy of the telegram, which had been sent as aforesaid to II. B., but not delivered; also, a charter party which their agent at Barbadoes had signed for them in accordance with their offer.

They had to re-charter the vessel at a loss. The court instructed the jury to find their verdict as a special verdict upon which, if in favor of the plaintiff, it should enter judgment for nominal damages or for the amount of damages as found by the jury as'it might thereafter be advised. The jury returned a verdict for plaintiff's for $618.90, and the said court, after being advised, entered judgment in favor of the plaintiffs and against the defendant lor said sum. The defendant alleges here as error that the court erred in rendering judgment for other than nominal damages.

This question has never before been presented for adjudication in this State. The courts in Hew York, Minnesota, Maryland, Wisconsin, Massachusetts, Nevada and Maine, following the case of Hadley vs. Baxendale, 9 Ex. 341, hold that only nominal damages can be recovered from the company undertaking to send the telegram, unless the sender should inform the operator of the special circumstances which constituted its importance and the need of its correct and prompt transmission. The case of Hadley vs.

Baxendale, supra, was this: The plaintiffs, owners of a steam mill at Gloucester, had a shaft broken, and desiring to have another made they left the broken shaft with the defendant, a common carrier, to be carried to a foundry at Greenwich to serve as a model for a new one. At the time of making the contract the defendant’s clerk was informed that the mill was stopped, and that the plaintiffs desired the broken shaft to be sent immediately, but were not informed of the special purpose for which the broken shaft was to he forwarded.

The carriers told the proprietors of the mill that they could deliver the shaft at Greenwich at a certain time. They failed to deliver it within the time, and a delay was caused in the making of a new one, and a consequent delay in starting the mill.

The court said: “We think the proper rule in such a case as the present is this: where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.

Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amouut of injury which would ordinarily follow from a breach o”f contract under these special circumstances so known and communicated.

But, on the other hand, if those special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, for such a breach of contract. For had the special circumstances been known,the parties might have expressly provided for the breach of contract by special terms as to-the damage in that case, and of this advantage it would be very unjust to deprive them.

The above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract.” All the eases above referred to rely upon the authority of this case of Hadley vs. Baxendale, and are decided upon the theory that the principles of law regulating the conduct of common carriers applies equally to the transmission of messages by the electric telegraph system. The business of one is to transport from one locality' to another some tangible object of weight and dimension.

Experience does not suggest in such a transaction any other liability than compensation for its value if lost or destroyed in the transportation, or such damages for its delay as the object itself might suggest. The business of the other is the transmission from one to another and from one locality to another, of information or intelligence, nothing in itself, but as the basis and ground work that is to influence the conduct of others, is in this respect of the very first importance. One is limited to the transportation of tangible things, the other to the transmission of the intangible.

There is no similarity in the services to be performed, in the nature of the things to be transported or transmitted, or the purposes to be effected, and as a consequence none as to the measure of damages for failure to perform their respective agreements. The decision in Hadley vs. Baxendale was proper and suited to the facts before the court, but an attempt to extend it to such cases as this would be productive of great injustice.

The telegraphic invention has made the system the means of communication between all civilized countries on the globe for a large part of the transactions and communications that prior to its invention were conducted by writing or by special messenger. Ho man can enumerate the vast number of subjects of treaty and intercourse that the complicated relations of maukind require its agency to accomplish.

It can safely be said, however, that the larger part of all messages sent are of a commercial or business nature which suggest value; the requirements of friendship or pleasure can await other means of less celerity and less expense. If this be true, why should the law assume that as a rule all messages sent over it are unimportant, and that an important one is an exception, of which the operator is to be informed ?

Whatever may be the rules of this particular defendant company, if they have any, there are none set forth in the record; whether, therefore, its rules :are reasonable or whether it can limit its liability by proper rules when shown to have been known to its patron, is in no sense involved in this opinion. The common carrier charges different rates of freight for different articles according to their bulk and value and their respective risks of transportation, and provides different methods for the transportation of each.

It is not shown here that the defendant company had any scale of prices which were higher or lower as the importance of the dispatch was great or small. It cannot-be said, then, that for this reason the operator should be informed of its importance, when it made no difference in the charge of transmission.

It is not shown that if its importance had been disclosed to the operator that he was required by the-rules of the company to send the message out of the order in which it came to the office, with reference to other-messages awaiting transmission, that he was to use any extra degree of skill, any different method or agency for sending it, from the time, the skill used, the agencies employed,, or the compensation demanded, for sending an unimportant dispatch, or that it would aid the operator in its transmission.

For what reason, then, could he demand information that was in no way whatever to affect his manner of action or impose on him t any additional obligation ? It could only operate on him persuasively to perform a duty for which he had been paid the price he demanded,, which in consideration thereof he had agreed to perform,, and which the law in consideration of his promise and the reception of the consideration therefor had already enjoined on him.

The system of telegraphy, founded as it is-on a comparatively recent discovery of the practical capabilities of a well known elementary force, whose existence-had hitherto made itself known more by its power of destruction and the dread of its visitations than by manifesting utility for the varied purposes of man, and having for its mission the almost instantaneous communication of ideas between persons widely separated, as to distance, unlike any industry or enterprise that had ever been in use-before, may justly be considered and treated as standing alone a system unto itself.

The nearest approach to any similar enterprise is the system of carrying letters by mail, but as this has been taken m charge and performed by the United States Government since its inception, and its acts or omissions cannot be made-subjects of judicial inquiry, we can find no precedent in this country to aid in the solution of the questions that are dividing the courts. The same may be said as to want of precedents in that country to which we have so often ' and so successfully looked for assistance in other disputed questions.

Prior fo the reign of James I, when the post was first established in England, letters were sent by a messenger specially hired for the purpose, or intrusted to the honor of some wayfarer who chanced to be goi ng to the place where the letter was desired to be sent. Butchers and drovers whose business of buying cattle caused them to visit various parts of the kingdom were the principal carriers of letters, as late as the 15th century.

Any attempt to apply to such a novel system legal principles adapted to pursuits and occupations which are dissimilar in their nature, and designed for the accomplishment of different purposes, must naturally result in failure and confusion.

A recognition by the courts of this truth, and an application from time to time to its conduct of such rules and regulations as common sense may suggest, as fitted to its peculiar nature and purposes, without reference to systems that are not similar and principles that are not analogous, is the only method preserving the law regulating its operation from contradictions and perplexities.

Similar difficulties have previously arisen in other branches of the law when from their novelty and a failure of applicable precedents, the courts, probably from fear of the hazard of framing new rules, or misled by a seeming analogy, have attempted to apply to such legal novelties long used principles of law, and to analogize the new to some old system with which they were familiar.

This disposition of the courts, or it may be said of the human mind, for it exists equally elsewhere, is very forcibly and conclusively shown in the effort, when the tenure of partners in the joint property of the partnership was a new question in the English courts, to liken it to a joint tenancy or a tenancy in common. This was the view, says Mr. Parsons, that was taken in all the early books. They all had the element, of joint ownership of property, but in all other respects were different and independent, and the law for each should be sought for in itself.

When this species of joint interest and ownership came under the cognizance of the courts of England it was new to them, and new to the law of England, and it was perhaps unavoidable that they who administered the law should have sought to bring this new topic within the rules and principles of these kinds oí joint ownership which were well known. Parsons on Partnership, pp. 2 and 3.

Much of the confusion, says the same learned author, existing to-day in suits and levies of a private creditor against a partner personally indebted to him is due to the inability of the law of partnership to clear itself of the last remaining influences of the old notion that partnership was but one form of tenancy in common. Ib., 352 and 353. The Supreme Court of Alabama, in the case of Daughtry vs. American Union Telegraph Company, at its December term, 1883, reported in the Alabama Law. Journal, May 1884, 75 Ala., 168, and the Supreme Court of California, in the case of Hart vs.

Western Union Telegraph Co., April term, 1885, 66 Cal., 579, have laid down a doctrine more harmonious with justice, and more applicable to the peculiar characteristics belonging to the system of telegraphy. They hold that a telegraph company is liable for damage resulting naturally, and in the usual course of business, from its failure tp send or deliver a dispatch correctly and promptly without requiring the.sender to disclose its importance to the company or its agent.

It is of no consequence whether the dispatch is in plain English or in cipher, provided such cipher is written in the letters of the English alphabet. The judgment of the Circuit Court is affirmed.