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Statement of the Case.

THE WESTERN

UNION TELEGRAPH COMPANY v. SULLIVAN ET AL.

Liability of telegraph company-For failure to deliver messageResults 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 delivery. (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 managing 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

Statement of the Case.

December, when navigation was about to close, the steamer was at the Minnesota dock 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 P. м. 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 and transmitted it to its Buffalo office as alleged, and

Argument for Plaintiff in Error.

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 recd here 1110p." The plaintiffs also introduced the steamer's log containing the following entry: "December 3, 3:40 А. М. 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'

Argument for Plaintiff in Error.

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

Argument for Defendants in Error.

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; TelegraphCable 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.

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