
    The Western Union Telegraph Company v. Sullivan et al.
    
      Liability of telegraph company — For failure to deliver message— Results from inaccuracy in transmission of message — Question of presumption as to fault — In non-delivery — Estimate of damages.
    
    1. Since a telegraph company for failure to deliver a message is liable only for such damages as naturally result from the breach of its contract, special damages cannot be recovered unless for injuries of such a nature as the terms of the message, or some circumstances attending its transmission, would suggest as likely to result from such failure. (Bank v. Telegraph Co., 30 Ohio St, 555, approved and followed.)
    2. Although in an action against a telegraph company for damages resulting from an inaccuracy in the transmission of a message, the inaccuracy having been shown, the burden is upon the company to show that it was not due to its fault, no presumption can be indulged to sustain an allegation of the company’s failure to make timely delivery of a message when it does not appear that the addressee, or some one representing him, was at the place designated for deliverj'. (Telegraph Co. v. Griswold, 37 Ohio St., 301, distinguished.)
    (No. 11080
    Decided March 15, 1910.)
    Error to the Circuit Court of Lucas county.
    Sullivan and others brought suit in the court of common pleas to recover from the telegraph company special damages alleged to have been sustained by them as a result of its negligent failure to deliver a telegram. They alleged that 'they were the owners, Sullivan being the mánaging owner, of the steamer “David W. Rust” which in the season of 1905 was engaged in carrying freight on the Great Lakes and tributary and .connecting rivers; that on the second day of December, when navigation was about to close, the steamer was at the Minnesota clock at the port of Buffalo about to sail light for her home port Toledo. That on that day Sullivan having nearly completed arrangements for a cargo of coal to be carried by the steamer from Buffalo to Toledo, being twelve hundred tons to be carried • at the rate of fifty cents per ton, at 9:45 p. m. delivered to the telegraph company’s agent at Toledo, written upon one of its blanks, the following telegram: “To Capt. Wm. J. Leaver, Steamer D. W. Rust, care Minnesota Dock, Buffalo, New York. Will wire you in the morning about coal. Collect. L. S. Sullivan.” They allege that said dock was about a mile and a half distant from the telegraph company’s Buffalo office where the telegram was received at 11:10 r. M. Eastern time; that the purpose of the telegram was to hold the steamer at Buffalo until Sullivan could complete arrangements for a cargo of coal to be carried to Toledo, but that although the telegraph company’s office was connected with the Minnesota dock by telephone, it negligently failed to deliver the telegram before 3:15 a. m. of the following day when the steamer left the dock for Toledo without cargo, and that by reason thereof the plaintiffs were unable to communicate with the steamer respecting the cargo of coal, and it went to Toledo without cargo, the plaintiffs losing thereby the agreed amount to be paid for its carriage for which they prayed judgment.
    The telegraph company answering admitted that it received the telegram at its Toledo office Efnd transmitted it to its Buffalo office as alleged, and that its latter office was connected with the Minnesota dock by telephone. It denied all the other allegations of the petition. On the trial to the court and a jury, the plaintiffs offered evidence tending to show that by Sunday morning, December 3, Sullivan had completed arrangements with the Toledo and Buffalo agents of a coal company for a cargo of coal to be brought by the steamer from Buffalo to Toledo as alleged, but that the same could not be communicated to the captain of the steamer because he had already left the port at Buffalo. To show the failure to deliver the telegram of the second of December, the plaintiffs introduced the following telegram from the company’s Buffalo agent on the day following: “Yours 2nd. Steamer D. W. Rush left Minnesota dock about midnight 2nd before boy reached dock msg reed here lllOp.” The plaintiffs also introduced the steamer’s log containing the following entry: “December 3, 3:40 a. m. W. N. W. L. Left Buffalo. Snow.” Plaintiffs showed that the captain of the steamer had died before the trial and rested without offering any other member of the crew or any further evidence. The defendant offered no evidence. In the common pleas court a verdict in favor of the defendant was directed. The judgment following it was reversed by the circuit court and the cause was remanded for a new trial.
    
      Messrs. Smith & Beckwith and Mr. George H. Fearons, for plaintiff in error.
    ■ There was no evidence of negligence on the part of the telegraph company. Indeed, plaintiffs’ proof itself negatives the. charge of negligence. Telegraph Co. v. Griswold, 37 Ohio St., 301.
    In support of the' proposition that in cases where damages for delay in delivery of a message are claimed, the plaintiff must show that the message could have been seasonably delivered, we cite: Ayres v. Telegraph Co., 65 App. Div., 149; Altman v. Telegraph Co., 84 N. Y. Supp., 54; Telegraph Co. v. Henderson, 7 So. Rep., 419.
    But beyond this, it will be noted in the case at bar that plaintiffs’ proof not only showed a nondelivery of the message, but also — (and this by the very same messages relied upon to prove non-delivery) ■ — that the reason for the non-delivery was that the boat had left the dock before midnight when the defendant’s messenger boy reached there with the message. If there was any presumption of negligence arising from non-delivery, in this case, such presumption is removed by the plaintiffs’ own evidence.
    But in any case, no damages can be recovered for the delivery of the message here in controversy. Bank v. Telegraph Co., 30 Ohio St., 555; Telegraph Co. v. Coggin, 68 Fed. Rep., 137; Primrose v. Telegraph Co., 154 U. S., 1; Baldwin v. Telegraph Co., 45 N. Y., 744; Telegraph Co. v. Clifton, 8 So. Rep., 746; Jacobs v. Telegraph-Cable Co., 24 So. Rep., 535; Melson v. Telegraph Co., 72 Mo. App., 111; McColl v. Telegraph Co., 7 Abb. New Cases, 151; Elliott v. Telegraph Co., 12 S. W. Rep., 954.
    But' in any case the damages sought to be recovered in this case are too remote and uncertain, for the reason that there was no certainty at the time of the alleged failure to deliver the message, that the boat could get a charter. It was a contingency which might or might not occur. There can be no recovery for the loss of an opportunity of which plaintiff might or might not avail himself. The message in this case was not contractual in its nature. It did not close a contract (as in the Griswold case above cited) ; it did not even make a contractual offer. Under such circumstances the damages can not be recovered. In this connection we cite besides the case of Bank v. Telegraph Co., 30 Ohio St., 555, the following cases: Johnson v. Telegraph Co., 29 So. Rep., 787; Lumber Co. v. Telegraph Co., 44 S. E. Rep., 309; Telegraph Co. v. Hall, 124 U. S., 444; Hosier Mills v. Telegraph Co., 51 S. E. Rep., 290; Fisher v. Telegraph Co., 96 N. W. Rep., 545; Telegraph-Cable Co. v. Barwise, 53 Pac. Rep., 252.
    
      Mr. W. S. Thurstin and Messrs. Seney & Thurstin, for defendants in error.
    Did plaintiffs introduce sufficient evidence to establish a prima facie case of negligence on the part of the telegraph company? We maintain that we did and cite the following cases to sustain our contention: Telegraph Co. v. Griswold, 37 Ohio St., 301; Barrack v. Telegraph Co., 12 Dec., 79; Fowler v. Telegraph Co., 80 Me., 381; Tyler v. Telegraph Co., 60 Ill., 421; Telegraph Co. v. Davis, 41 Ark., 79; Cowan v. Telegraph Co., 122 Ia., 379; Sherill v. Telegraph Co., 116 N. Car., 655; Bank v. Telegraph Co., 30 Ohio St., 555.
    
      Was the testimony such that reasonable men might differ as to whether a party had been guilty of negligence or not?
    This subject is partially covered by the citations in the above subdivision, but this phase of the question is equally pertinent: If reasonable men
    might differ as to whether a party- had been guilty of negligence or not, then, it is a question for the jury to decide, and the jury alone. Railway Co. v. Stone, 2 C. C., N. S., 161; Koester v. Railway Co., 20 C. C., 475; Kelly v. Howell, 41 Ohio St., 438; Lear v. Railway Co., 12 O. C. D., 797, 60 Ohio St., 602.
    Did the telegram convey sufficient notice of a business transaction to place a prudent man on inquiry as to the importance of the message? We maintain that it did. In the following cases are good examples of the sufficiency: Manville v. Telegraph Co., 37 Ia., 214; McPeek v. Telegraph Co., 107 Ia., 356; Telegraph Co. v. Short, 53 Ark., 434; Telegraph Co. v. Zane, 25 S. W. Rep., 722; Thompson v. Telegraph Co., 64 Wis., 531; Telegraph Co. v. Graham, 1 Col., 230; Pearsall v. Telegraph Co., 124 N. Y., 256; Bierhaus v. Telegraph Co., 8 Ind. App., 246; Telegraph Co. v. Wenger, 55 Pa. St., 262.
    It is sufficient if the result likely to follow negligence in transmitting it may be gathered in a general way from the wording of the telegram. 27 Am. & Eng. Ency. Law (2 ed.), 1063.
    Did the telegram disclose enough of its importance to charge the telegraph company with notice, at the time it was delivered to -it, so that had it bestowed proper attention upon the subject it would have contemplated the damages flowing from the breach of the contract?
    We maintain that it did and offer the same reasons as in the above subdivision.
    In considering Hadley v. Baxendale, 9 Exchequer, 341, we believe that the true doctrine and the one followed by this court in Bank v. Telegraph Co., 30 Ohio St., 555, is the rule enunciated in Leonard v. Telegraph Co., 41 N. Y., 544, and Telegraph Co. v. Lathrop, 7 L. R. A., 474.
    Was there the slightest amount of evidence tending in any way to prove the material allegations necessary for plaintiffs to recover?
    There was far more than slight evidence upon every material allegation necessary for plaintiffs to recover.
    There was far more than a scintilla of evidence introduced by plaintiffs below on the material allegations. This being the case it was error for the court to take the case from the jury or to direct them to return a verdict for defendant.
    The most that the court could have done was to direct for nominal damages. Bank v. Telegraph Co., 30 Ohio St., 555; Hibbard v. Telegraph Co., 33 Wis., 565; Candee v. Telegraph Co., 34 Wis., 471; Railroad Co. v. Van Horn, 21 C. C., 337; Stockstill v. Railroad Co., 24 Ohio St., 83; Lessee of Moore v. Vance, 1 Ohio, 1; Chase v. Brundage, 58 Ohio St., 517.
   Shauck, J.

The case is to be determined by the fact that the plaintiffs in the original case sued only Tor the special damages resulting from the failure to secure a cargo for the steamer pn her trip from Buffalo to Toledo, and the question whether a case is made which charges the telegraph company with legal liability for the special loss so occasioned. An intelligent test for such liability was stated in Hadley v. Baxendale, 9 Exchequer, 341. The doctrine in that case has been commended in very many cases, and has been repeatedly recognized as determining the law. of this state in all cases to which it is applicable. It was stated and applied to a case quite like this in the First National Bank of Barnesville v. The Western Union Telegraph Co., 30 Ohio St., 555. The second proposition of the syllabus states the doctrine to be: “In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to' have been within the contemplation of the parties, at the time the contract was made.” That the phrases “such damages as naturally flow from the breach of the contract” and “such as may fairly be supposed to have been within the contemplation of the parties” are equivalent statements quite clearly appears from the opinion, in which it is said: “In considering what damages may be supposed to have been fairly within the contemplation of the parties, there was nothing in this dispatch to inform the telegraph company of the serious consequences that are now presented.” It also appears from the conclusion reached upon the facts in that case. Considering the terms of the telegram delivered by the plaintiff in the present, case for transmission to the captain of the steamer at Buffalo, and all the circumstances attending its delivery, what was there to apprise the company that the loss of a cargo or other loss of like character might result from a failure to deliver the telegram? The evidence shows that the managing owner of the vessel had returned from Buffalo but a few hours before he deposited the message for transmission, and it may be that from conversations which he there had with him the captain would have understood, if he had received the telegram, that it referred to a cargo of coal of which he would be advised by telegram the following morning. With that understanding of the significance of the message he would naturally have regarded it as equivalent to a direction to remain at the dock at Buffalo until he should receive the telegram which was to follow. But the rule by which the liability of the company is to be tested requires that such significance should have been suggested to it by the message transmitted or by the circumstances of its transmission, or by another telegram. The message “Will wire you in the morning about coal” suggested no such significance to the company. All of the terms of the message, and all of the circumstances disclosed, would have been answered by assuming it to be a telegram relating to coal for the bunkers of the steamer. Instead of suggesting an order to the captain to remain at the dock until morning, it was rather an assurance that he would remain there to receive the proposed message the next morning, whether the present message was delivered or not. Nothing in the terms of the message then sent, or in any preceding message, or in any circumstances, suggested to the company that the captain was likely to leave the dock, or that results like those for which indemnity is now sought were in any way involved.

Furthermore, presumption cannot be invoked to show that the company was at fault with respect to the deliveiy of the message. Whether it was competent or not, the steamer’s log was introduced in evidence. It showed that it left Buffalo at 3:40 a. m., but is silent as to the time when it left the dock to which th^ message was addressed. That was made more definite by the telegram from the company’s office at Buffalo to its office at Toledo stating that the steamer had left the dock at about midnight before the messenger arrived with the telegram which had been received at the office at 11:10. This was introduced by the plaintiffs perhaps for the purpose of showing the company’s admission that the steamer had left the dock before the receipt of the telegram of the next morning. Although the plaintiffs introduced this evidence as to the time when the steamer left the dock, they would perhaps not have been precluded by it if they had produced evidence to show that the time of its leaving the dock was so much later as to leave ample time for the delivery of the message under all the circumstances. This they did not do. The record shows that the captain had died before the trial, but failure to call one of the mates, or a member of the crew, must be taken as an admission of the plaintiffs that they could not establish a later hour for the steamer’s departure from the Buffalo dock than that fixed by the telegram which they had introduced.

The obligation of the plaintiff in a case of this character to produce evidence to show the failure' of the company to make a timely delivery of a message, should be distinguished from the doctrine of the Telegraph Company v. Griswold, 37 Ohio St., 301, where it was held that in an action for damages for the inaccurate transmission of a message, the inaccuracy having been shown, the burden is upon the company to show that the mistake was not attributable to its fault. The presumption which was there indulged, after prima facie case had been made against the company, may' not be indulged here for the purpose of making a prima facie case.

The judgment of the circuit court will be reversed, and that of the court of common pleas affirmed.

Judgment reversed.

Summers, C. J., Crew, Spear, Davis and Price, JJ., concur.  