
    The First National Bank of Barnesville v. The Western Union Telegraph Company.
    1. In case of a breach of contract, actual damages not being proved, nominal damages may be recovered.
    2. 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.
    3. If the telegraph company is in default, but their default is made mischievous to a plaintiff only by the operation of some other intervening cause, such as the dishonesty of a third person, the rule “ causa próxima non remota spectator" applies, and the company can not be made responsible for the loss occasioned by the act of such third person.
    4. Defendant having filed an answer to the petition, and plaintiff thereupon filing an amended petition, to which defendant answers without making the original answer part of the second answer, the case stands for trial on the amended pleadings, and the original pleadings are disregarded.
    Error to the District Court of Belmont county.
    The facts appear in the opinion.
    
      
      J. M. Collins, for plaintiff’ in error:
    1. The admission of testimony showing that the dispatch was written on one of the defendant’s printed blanks, and allowing that blank to be read to the jury as a contract between the parties, for the purpose of exonerating the defendant for its negligence, was improper:
    
      (a.) The contract was not pleaded. The answer to the amended petition amounted to an abandonment of the answer to the original petition. Dunlap v. Robinson, 12 Ohio St. 530.
    
      (b.) The defendant could not relieve itself from liability for negligence. Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; Welsh v. Pitt., etc., R. Co., 10 Ohio St. 65; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1; U. S. Express Co. v: Packman, Erie Railwuy Co. v. Lockwood, Gaines v. Union Tr. § I. Co., 28 Ohio St. 144, 358, 418; Sweatlandv. Rl. M. Tel. Co., 27 Iowa, 432; Manville v. W. U‘. Tel. Co., 37 Iowa, 214; Rittenhouse v. Indiana TAne, etc., 44 N. Y. 253; Bartlett v. W. U. Tel. Co., 62 Maine, 209; Redfield on Railways (3 ed.), 244; Shearman & R. on Neg. 565.
    2. The plaintiff was entitled, in any view, to nominal damages, and there was error in the charge of the court on that subject. Parks v. Alta Cal. Tel. Co., 13 Cal. 422; ■Sedgwick on Damages, 45, 51.
    3! But the plaintiff was also entitled to substantial damages, and the court erred with respect thereto. Parks v. Alta Cal. Tel. Co., supra; Byrant v. Am. Tel. Co., 1 Daly, 575; Leonard v. É. Y., etc., Tel. Co., 41 N. Y. 544; True v. Int. Tel. Co., 60 Maine, 9; Squire v. W. U. Tel. Co., 98 Mass. 232; 55 Penn. St. 262; 47 Iowa, 458 ; Bartlett v. W. U. Tel. Co., supra; Bonenv. Lake Erie Tel. Co., 1 Am. Law Reg. 685 ; Davis v. W. U. Tel. Co., 1 'Superior Court Reporter, 100; Dubois $ Auger v. W. U. Tel. Co., Superior Court of Cincinnati, 1869, MS. In this case, Auger, one ■of the plaintiffs, being in Memphis, sold a quantity of meat and lard, and telegraphed the fact to Dubois, his partner, in Cincinnati, in order that purchases might be made to fill the order; bat the dispatch was never delivered, and theplaiutiffs were compelled to make the purchases for $416 more than they would have had to pay, if the dispatch had been promptly delivered, and the court (Taft, J.) held the plaintiffs were entitled to recover that amount as damages. See also Warn v. W. U.- Tel. Co., 37 Mo. 472; 44 NY. 263; 36 Ala. 61; 13 Howard (U. S.), 454; Eield on Damages, 29, 286, 350. Lowery v. W. Ü. Tel. Co., 60 N. Y. 198,. it will be seen, is clearly distinguishable from this case.
    4. The maxim, causa próxima non remota spectatur, does-not apply. The loss is not the result of a cause of a cause, for there is but one cause — i. e. the defendant’s negligence ; and but one effect — i. e. the plaintiff’s loss. It were infinite,, says Lord Bacon, in commenting on the maxim, to consider the cause of causes and their impulsion one upon another ; but in this case we only trace one cause — i. e. the defendant’s negligence — to its legitimate effect.
    
      J. W. Okey (with whom was O. J. Swaney,) for defendant in error:
    1. The contract with the defendant was made in New York, the plaintiff acting by its agent, Baker, but it could only be fully performed by delivering the message to the-plaintiff in Ohio, of which state the plaintiff is a resident. Whether this was an Ohio or a New York contract, see Wharton’s Conflict of Laws, sec. 401. But whether a New York or Ohio contract, and whether the defendant is a domestic or a foreign corporation, or an unincorporated company, the result is the same, and in either case the defendant had power, by force of the statute, and even without statute, to make reasonable rules and regulations as to the terms and conditions upon which messages would be transmitted. S. & S. 155, sec. 137; 113 Mass. 299; 1 S. & C.. 298; . Camp v. Telegraph Company, 1 Met. (ICy.) 164; Bree se v. U. S. Tel. Co., 48 N. Y.- 132; Young v. W. U. Tel. Co., 65 N. Y. 163.
    2. The printed heading on the message, which was in the form set forth in 113 Mass. 299, stipulated (a) that, the: company would not be liable for the non-delivery of an unrepeated message, beyond the amount received for sending it; nor (b) for damages, in any case, where the claim is not presented in writing within six months. These were reasonable stipulations, well known to the plaintiff’s agent, affecting the defendant’s liability, and by which the defendant is exonerated from liability, there being neither bad faith nor gross negligence, and the plaintiff not having paid anything for the message, and it not appearing that the suit was brought within six months :
    
      (a.) As to the non-delivery of the message: Grinnell v. W. U. Td. Co., 113 Mass. 299; Passmore v. IF. 27. Tel. Co., 78 Penn. St. 238; Young v. W. U. Tel. Co., supra; W. U. Tel. Co. v. Garew, 15 Mich. 525; Waim v. W. TJ. Tel. Co., 37 Mo. 472 ; 27. S. Td. Co. v. Gildersleve, 29 Md. 232; Candee v. W. U. Tel. Co., 34 Wis. 471; Manville v. W. 27. Tel. Co., 37 Iowa, 241; 41 Iowa, 458 ; Camp v. Telegraph Co.<, supra; Aikens v. Telegraph Co., 5 South Carolina, 358. See also the cases therein cited. Nor will either of the cases cited for plaintiff be found to conflict with those above named.
    (b.) As to the six months limitation : Young v. TP. 27. Tel. Go., supra. Nor is this a matter of defense; it goes to the right to recover. Pittsburgh, etc., B. B. Co. v. Hine, 26 Ohio St. 629.
    3. The printed heading was properly considered by the court and jury:
    
      {a.) It was pleaded in the original answer, which is not waived by or inconsistent with the answer to the amended petition. A party could always abide by his former plea. Wright v. Hollingsworth, 1 Peters, 165. And the rule is not different under the code. Boderich v. Bailroad Go., 7 W. Va. 54. The two answers are to be construed together. Pharo v. Johnson, 15 Iowa, 560. That, in effect, is what was done in the court below. In Dunlap v. Bobinson, 12 Ohio St. 530, the answers were inconsistent; hence the first could not stand.
    
      (b.) The contract was entire. Cases cited under point 2. The defendant has the right to have the whole go to the jury. 1 Wharton’s Ev., sec. 617; 2 lb., sec. 1103. Whether the written part of the contract got to the jury by admissions in the pleadings, or by being formally offered in evidence, would not affect the right of the defendant to have the whole of the contract read.
    (c.) The printed heading was offered in evidence by the plaintiff. Record, 24, 29, 32. 'A party can not assign for error what the court has permitted to be done at his own request.
    See, also, the remarks of Welch, J., in the last paragraph in Hoffman v. Gordon, 15 Ohio St. 218; also Pomeroy’s Rem., sec. 566.
    4. There was no actual damages, in any legal sense, and a court of error will not reverse for a failure to assess nominal damages. Hill v. Butler, 6 Ohio St. 207; Smith v. Weed Sew. M. Co., 26 Ohio St. 562. Even if the matter of costs was affected, the court would only reverse so far as to direct each party to pay his own costs. Code, sec. 526.
    5. The court erred in the charge to the jury, but the error was altogether against the defendant, and therefore furnishes no ground of reversal, as the defendant is not complaining. The sole duty of the court was to say to the jury, that on the case as both parties admitted it to be, there could be no recovery at all; for the court, in a proper case, has that power. Stockstill v. D. § M. R. Co., 24 Ohio St. 83. The reasons for this view are numerous:
    
      (a.) The plaintiff assumed that Davis’ letter had reached New York, and received the attention of its correspondent there; and that no telegram had been received from its correspondent, for the reason that all was satisfactory, and the bank took the risk of cashing the drafts under such circumstances. ■ This, surely, was negligence.
    
      (b.) The plaintiff failed to have the message repeated, and in that was guilty of contributory negligence. Passmore v. W. O. Tel. Co., supra.
    (c.) The plaintiff does not appear to have taken the slightest step toward the recovery of the money from Lowshe, although its agent forwarded to it by mail the substance of the message on the day it was delivered for transmission by telegraph. Record, 29.
    (d.) If the company was negligent, yet the defendant could not, in law, be hold, as the cause or mover, for the independent antecedent criminal and tortious act of Lowshe, even if he had found the opportunity to do the act, or keep the money beyond the reach of the plaintiff’, through the failure of the defendant to deliver the message. (See cases under /.)
    (e.) The plaintiff can not, maintain its action by making an allegation that Lowshe obtained the money by false pretenses, and recover on his evidence alone, that if the plaintiff' had made the request he would have restored the money next day. It is a mistake to suppose this is a matter for the jury. The court will not enter upon such an inquiry to hold the defendant liable under such circumstances. (See cases under /.)
    (/.) The damages which may be recovered in such a ease must be such as would naturally and ordinarily flow from the failure to deliver the message, or such as must have been contemplated by the parties. Here there was no information given as to the message, except what could be gathered from its words. The message was to a bank, and hence the company might naturally infer that information was sought with a view to the purchase of drafts. But the greatest loss that would naturally or reasonably be contemplated by the agents of the company, would be the loss to the bank of a customer. The idea that the message contained information which would enable the bank to recover money which had been fraudulently obtained from it several hours before, would not naturally occur to any one on reading the message. The natural conclusion from the words of the message is that uo money had been or would be parted with by the bauk until the telegram was received. Even without regard to the printed contract, it seems to be perfectly clear that there can be no recovery. Hadley v. Bcixendale, 9 Exch. 841; S. C., 26 E. L. & Eq. 391; Sedgwick on Damages (6 ed.). 81, 439-447; Lowery v. W. U. Tel. Go., 66 N. Y. 198; Beaufre v. Pae. At. Tel. Co., 21 Minn. 155;, Candee v. W. U. Tel. Co., 34 Wis. 471; Saunders v. Stewart;. 1L. R. C. P. Div. 326; Iloey v. Pelton, 11 C. B. N. S., 103,. E. C. L. 142; Marble v. Worcester, 4 Gray, 395.
    
      (g.) It is the cause, and not the cause of the cause, that is regarded. Causa próxima non remota spectatur. lb., 23 Ohio-St. 532 ; 2 Disney, 247 ; 1 Sup. Ct. Rep. 480.
    6. The error in the argument of counsel is that he asks-that the defendant be held for everything it was possible for the plaintiff to obtain by means of the dispatch, i. e. $3,000, instead of saying the defendant should be held for the loss-which one reading the telegram could reasonably suppose-would be sustained by the plaintiff in case the message was not delivered,.*', e. the loss of a customer. Hadley v. Baxendale, supra; "Wharton on Neg., secs. 756-767.
   Wright, J.

The First National Bank of Barnesvillebrought an action in the court below, against the Telegraph-Company, to recover damages for' failure to transmit and deliver a telegraphic message. The bank was located in.Barnesville, Ohio. It had done business with oue Aaron Lowshe, and had frequently cashed drafts for him, in a small way, prior to February, 1869. In that month, Lowshe wanted two more drafts cashed — one on Beilis & Milligan,. New York, for $1,600; one on Ege & Otis, same place, for $1,400. The amounts being large, and the bank cautious, the cashier wrote to a correspondent in New York, George F~ Baker, cashier First National Bank, New York, as follows :

“ Would like information in respect to Mess. Ege & Otis,. No. 168 W. W. Market; also, Mess. West, Titus & Co., No.. 129 West street. Are they responsible parties ? If not too much trouble, would be pleased to have you inquire of each, if dft., at sight, drawn by A. Lowshe for $1400 to $1600-Would be paid. If the firms, or either of them, are not reliable for that amt., or if they should be-unwilling to accept, please answer by telegram. If all right, need not dispatch. If not right, would like to hear by Saturday evening (13th).”

This letter was dated at Barnesville, February 11th, which appears to have been Thursday. No mention is made, it will be observed, of Beilis & Milligan, on whom! the $1,600 draft was drawn.

The letter was received in New York by Baker, to whom it was addressed, on February 15. It is stated in evidence that the ordinary time of mail communication, between "Barnesville and New York, is two days. This advice to Baker probably reached its destination after close of bank hours, on Saturday, and was taken up in the ordinary ■course of business on Monday morning. On that day "Baker made inquiries of Ege & Otis, on whom the $1,400 ■draft was drawn, and at 4.55 of that day telegraphed as follows, to the bank at Barnesville:

February 15, 1869.
•“ To J. F. Davis, Cash., Barnesville, O.
“ Parties will accept if bill lading accompanies the draft. "Parties stand fair. Geo. F. Baker, C.”

This message never was received at Barnesville. There •is testimony tending to show that it started to and perhaps reached Buffalo. But it is not traced beyond that point, •and the telegraph company give no satisfactory account of what became of it. The one certain fact about it is, that the Barnesville bank never received it. New York not "being heard from, the Barnesville bank cashed the drafts, on Monday the 15th, before three o’clock, the hour at which business closed. Lowshe, the drawer, had no money in New York at all, either in the hands of Beilis & Milligan, •or Ege & Otis, and having accomplished his financial transaction at Barnesville, left the same day for Zanesville, and ■from thence to other places more remote. The Barnesville bank now claims that the $3,000 was a total loss; and that this loss is chargeable upon the telegraph company, in not «ending and delivering the dispatch. They therefore claim 4o recover this amount in this action.

In the first petition of the bank, it is stated that the drafts were discounted between two and three o’clock on the 15th, which would not have been done, had the dispatch been reasonably delivered. The answer of defendant, however, showed that the dispatch was not delivered in New York until 4.55 ; it is therefore entirely obvious, that'no omission, or neglect on the part of the telegraph ■company, could have prevented the cashing of the drafts.

In the last petition of the bank, it is said :

“ The said drafts were a total loss to said plaintiff, no part thereof having been paid, which said loss would have been prevented if said defendant had forwarded and delivered ■said dispatch to said plaintiff within a reasonable time after it was received by said defendant at its said office in New York city, as aforesaid.
“ If said dispatch had been delivered to said plaintiff before said drafts were discounted, the same would not have been discounted, and if it had been delivered to said plaintiff' within a reasonable time after the same were discounted, the said sum of $3,000 could have been recovered back by ■said plaintiff from said Lowshe.”

In the view we take of the case, the sole question that need be decided, is the one of damages. As has been said, had the dispatch been .duly sent and received, it could not have prevented the bank from giving Lowshe the money ; that had already been done. Had it been delivered, however, within any reasonable time, after receipt at New York, then w'hat would have happened? Plaintiffs below say they could have recovered back the amount from Lowshe, and therefore they lost their $3,000 by the negligence of the defendant. The petition does not state how or in what manner they could have recovered the money, but merely asserts the fact to'be so. The only facts in evidence showing any intention to take steps to recover the money, or intimating how it was to be done, is the following from the •cashier, Davis:

Q. Would there have been any trouble in the bank giving security in Zanesville in any proceeding to recover the money ? [Objected to.]
“A. I think not.
Q. State whether, if this message had been received by the bank during the afternoon or evening of February 16,. 1869, any means would have been used to recover the money; if so, what?
“A. I am confident means would have been used to recover it.”
Mr. Lowshe also makes this statement:
Q. If the bank had discovered, while you were at Barnesville or Zanesville, that those drafts which you had' cashed at the Barnesville bank would not be accepted, and had demanded the money back, would you have refunded', it to the bank ?
“A. At Zanesville, on the afternoon of the first day there, I sent five hundred dollars of the money home. Had the bank informed me at Barnesville the drafts would not be accepted, I would have returned the money to the bank.. Had such information reached me at Zanesville, before I sent the five hundred dollars home, I would have returned it all. Had such information reached me at Zanesville after I sent- the five hundred dollars home, I would have returned the balance to the bank. I would have returned the-money immediately on receiving such information.”

In this connection the court charged the jury in effect,, that if defendants were guilty of negligence in not transmitting the message, then plaintiffs must show that Lowshe was where they could have reached him with legal process and that he had property in such position that the law could lay hold of it; and if this was not shown, but it appeared that the recovery of the money depended upon the happening of a new contingency which might or might not have occurred, the damages were so remote that no recovery could be bad.

Upon the case as thus made, we are clearly of opinion that the plaintiff was not entitled to substantial damages.

If the New York dispatch had arrived upon the 15th or 16th, it is not made apparent, either in pleadings or proof,, how the bank was to secure itself, -with that certainty the law requires, in order to justify a claim for damages. It is not made to appear that Lowshe had property that could -be seized. He had obtained this money, it is true, and perhaps might have had it in his possession, but he might ■easily have put it beyond the reach of process. But even if he had the money where he could lay his hand upon it, it is not pointed out how the bank proposed to reach it. Had he been arrested on the ground of fraud, it might have been difficult to sustain such a proceeding, until after the drafts had been actually protested for non-acceptance, „by which time Lowshe was lost sight of. Nor is it alleged •or proved that an actual arrest would have produced the ■money. It is true, the bank claims tjhat Mr. Lowshe would have returned the money, because he said he would; still the jury might have considered that as the “mere contin.gency,” which the court instructed them, only occasioned a •damage that was l’emote.

The rule as to damages is thus laid down by Earl, J., in Leonard v. Tel. Co., 41 N. Y. 544 : “ The damages must flow directly and naturally from the breach of contract, and they must be certain both in their nature and in respect to the cause from which they proceed. Under this rule, speculative, contingent, remote damages, which can not be directly traced to the breach complained of, are excluded. Under the former rule, such damages are only allowed as may fairly be supposed to have entered into the contemplation of the parties, when they made the contract, as might naturally be expected to follow its violation. It is not required that the parties must have contemplated the actual damages which are to be allowed. But the damages must be such .as the parties may be fairly supposed to have contemplated when they made the contract. A more precise statement of the rule is, that a party is liable for all the direct d.am-.ages which both parties would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.” See also Ringhorne v. Mont. Tel. Co., 18 Up. Can. Q. B. 60, and Stevenson v. Mont. Tel. Co., 16 Ib. 530 ; Squire v. West. Union Tel. Co., 98 Mass-232.

This is substantially the rule as laid down in Hadley v. Baxendale, 9 Exch. 341, and 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. There was absolutely nothing in' the-language of the message advising the company that it was to-prevent the cashing of $3,000 worth of drafts. Hadley v. Baxendale, and numerous authorities, hold that, before a-party can be charged with such special and peculiar damages as are here claimed, he must have had notice that they were likely to arise from a breach of his contract.

In Parks v. Alta Cal. Tel. Co., 13 Cal. 422, the message-was to attach property. This was of itself notice that if theattaehment was not procured, the loss of the debt might follow.

Bryant v. Am. Tel. Co., 1 Daly, 575, was, like the last, a case where an attachment was directed.

In U. S. Tel. Co. v. Wenger, 55 Penn. St. 262; Allen’s Tel. Cas. 356, there was an order to buy stocks, which was-delayed. The stocks rose in value, and the telegraph company were held responsible for the difference. And it is said by the court that the despatch was such as to disclose the nature of the business to which, it related, and the loss-might be very likely to occur if there was delay in sending-the message.

Upon the other - hand, in Baldwin v. Tel. Co., 54 Barb. 505 ; 1 Dans. 125 ; 45 N. Y. 744, the syllabus is : “ If a telegram does not show upon its face that it relates to a business transaction, and that a pecuniary loss may probably be sustained if a mistake is made in transmitting it, and no notice to this effect is given to the telegraph company, the-company making such mistake will not be liable in damages for such loss.”

In Landsberger v. Mag. Tel. Co., 32 Barb. 536, it was held that plaintiff could not recover damages, because, “ on receiving the despatch for transmission, the defendant had no information whatever in relation to it, or the purposes to be accomplished by it, except what could be derived from the dispatch itself.”

In U. S. Tel. Co. v. Gildersleve, 29 Md. 407 : Allen Tel. Cases, 390, it is held that knowledge of special circumstances must be shown, to lay a foundation for special damages.. Stevenson v. Montreal Tel. Co., 16 U. Can. Q. B. 530, 537. The telegraph cases, generally, follow the rule of Hadley v. Baxendale, with regard to notice, as is shown by the numerous authorities cited by counsel.

It therefore appears to us that the possibility of recovering the money from Lowshe was a contingency too remote upon which to base a recovery. The fact that the-company were not advised of any importance attaching to-the message, either by the message itself or actual notice given, goes further to show a case where substantial damages can not be recovered.

And in this connection, and as relating to the question of damages, we may consider the rule, “causa próxima non remota spectatur,” as to which Parsons says (vol. 2, p. 257 — Telegraphs, measure of damages) : “ If the telegraph company is in default, but their default is made mischievous-to a party only by the operation of some other intervening-cause, then the rule above mentioned would prevent the liability of the company ; because their default would only be the remota, the remote or removed cause of the injury,, and not the próxima, or nearest cause.”

If the telegraph company were guilty of negligence in not delivering the message at Barnesville, the question remains, whether there would have been a loss if there were-no other cause intervening. Clearly the failure in the message was not the moving cause that induced Lowshe to obtain the discounts and pocket the money ; neither would the delinquency of the telegraph company have occasioned any damage had Lowshe evidenced that integrity which, in a virtuous mind, would have induced tiiereturn of the money to the bank. The loss was occasioned; by two causes — the short-coming of the telegraph company, in not delivering the message, and the still shorter-coming of Lowshe, in appropriating to himself what belonged to somebody else.

In Lowery v. Western Union Telegraph Co., 60 N. Y. 198, B. sent a telegram to plaintiff, asking for $500 ; by mistake, the telegraph company changed the message to $5,000,' which B. obtained, embezzled, and absconded. The referee ■held the telegraph company liable for the loss in the whole amount. This was held error; that defendant’s negligence was not the proximate cause of the loss, as -the embezzlement of B. did not naturally result therefrom, and could ubt reasonably have been expected.

In this case, the court, quoting from Crain v. Petrie, 6 Hill, 522, lay down this rule: “To maintain an action for ■special damages, they must appear to be the legal and natural consequences arising from the tort, and not from the wrongful act of a third person induced thereby. In •other words, the damages must proceed wholly and exclusively from thejnjury complained of.”

In any aspect, therefore, in which we are able to view the case, we can not but consider that the damages are too remote to uphold recovery to any substantial amount.

But the plaintiff was entitled to recover nominal dam.ages. Upon the breach- of an agreement, the law infers damages, and if none are proved, nominal cau be recovered. Sedgwick on Damages, 47; Field on Damages, 679; Parks v. Alta Cal. Tel. Co., 13 Cal. 425; Candee v. West. Un. Tel. Co., 34 Wis. 471.

The plaintiff asked the court to charge that, if the nondelivery of the message was by reason of defendant’s negligence, plaintifl was entitled to nominal damages, if there were no actual damage. This was refused, and the court did charge that there was no right of action, unless injury was shown. This was error, for which the judgment must be reversed.

The state of the pleadings relieve us from consideration of those points in the case which refer to the special contract which forms the heading to the message itself. This •contract was set up as a defense in the answer to the original petition. Subsequently, however, an amended petition was filed. To this an answer was filed, not making the original answer a part thereof, and not setting up the special contract as a defense. In this state of the pleadings, we look to the amended petition and answer •alone. Thus the special contract is eliminated from the •case.

Judgment reversed.  