Opinion
April 3, 1941.
1. — Telegraphs and Telephones. A petition, filed in justice court by addressee of telegram against telegraph company for damages for company's alleged negligence in transmitting telegram, stated cause of action in circuit court where case was tried, where petition fully alleged all the facts required to be stated under statute under which action was commenced (R.S. 1939, sec. 5334, Mo. St. Ann., sec. 4929, p. 2246).
2. — Action — Telegraphs and Telephones. A petition, alleging that telegraph company negligently delivered a telegram to addressee stating that sender would pay $2.75 per dozen for rabbits, instead of $2.25 per dozen as stated in telegram handed to company by sender for transmission, and that sender refused to pay addressee more than $2.25 per dozen for rabbits, and that addressee was thereby damaged 50 cents per dozen on rabbits purchased for sender, stated a cause of action in tort, and the damages, being the natural consequences of company's negligence were general and not special damages.
3. — Telegraphs and Telephones. In action for breach of public duty against telegraph company delivering a telegraph message to addressee different from message handed to company by sender for transmission, special damages are recoverable, if damages alleged are natural consequences of negligence of company, regardless of whether such damages were in contemplation in an action on contract (R.S. 1939, sec. 5334, Mo. Stat. Ann., sec. 4929, p. 2246).
4. — Trial. In addressee's action against telegraph company for damages from company's negligently delivering a telegram stating that sender would pay $2.75 per dozen for rabbits, instead of $2.25 per dozen as stated in telegram given by sender to company for transmission, reopening case and permitting sender to introduce evidence as to cost of rabbits was not abuse of discretion (R.S. 1939, sec. 5334, Mo. Stat. Ann., sec. 4929, p. 2246).
5. — Telegraphs and Telephones. A petition, alleging that telegraph company negligently delivered telegram to addressee stating that sender would pay $2.75 for rabbits instead of $2.25 per dozen as stated in telegram given to company by sender for transmission, and that sender refused to pay addressee more than $2.25 per dozen for rabbits, and that addressee was thereby damaged 50 cents per dozen on rabbits purchased for sender, alleged general damages in tort and not special damages in contract, and hence instruction that addressee could recover as damages such sum as addressee sustained as result of telegram being erroneously copied, transmitted, and delivered, was proper (R.S. 1939, sec. 5334, Mo. Stat. Ann., sec. 4929, p. 2246).
6. — Appeal and Error. A possible conflict in instructions was not reversible error where verdict was for right party and jury followed the proper instruction, and the conflict did not change result (R.S. 1939, sec. 1228, Mo. Stat. Ann., sec. 1062, p. 1352).
7. — Telegraphs and Telephones. In addressee's action against telegraph company delivering a telegram stating that sender would pay $2.75 per dozen for rabbits instead of $2.25 per dozen as stated in telegram given by sender to company for transmission, allowance of damages based on difference between amount stated in telegram and amount which addressee actually got from sender for rabbits was proper, since loss on which damages were based was real and not speculative loss, and was not for anticipated profits (R.S. 1939, sec. 5334, Mo. Stat. Ann., sec. 4929, p. 246).
Appeal from the Circuit Court of Laclede County. — Hon. William E. Barton, Judge.
AFFIRMED.
Francis R. Stark, Bradshaw Fields, J.N. Brown and Frank B. Williams for appellant.
(1) The petition does not sound in contract, but sounds in tort, and is bottomed solely on Missouri statute. Sec. 4929, R.S. Mo. 1929; Markel v. Western Union Tel. Co., 19 Mo. App. 80; Newman v. Western Union Tel. Co., 54 Mo. App. 434, 445-446; Western Union Tel. Co. v. Burris, 179 F. 92; Reed v. Western Union Tel. Co., 135 Mo. 661, 662; Barnett v. Western Union Tel. Co. (Mo. App.), 287 S.W. 1064. (2) The statute provides that telegraph companies shall be liable for special damages occasioned by the failure or negligence of their operators or servants in transmitting or delivering dispatches. The damages allowed to the sendee being special, the sendee must both plead and prove special damages as distinguished from general damages. Sec. 4929, R.S. Mo. 1929; Markel v. Western Union Tel. Co., 19 Mo. App. 80, 86; Levy v. Western Union Tel. Co., 35 Mo. App. 170; Barrett v. Western Union Tel. Co., 42 Mo. App. 452; Barnett v. Western Union Tel. Co., 287 S.W. 1064, l.c. 1068; Hughes v. Western Union Tel. Co., 79 Mo. App. 133. (3) Special damages are those which the law does not imply, and are such as naturally, but not necessarily, flow from the negligence complained of. They must be pleaded with particularity and in this case would be the difference between what the number one rabbits actually cost plaintiff delivered, and what he actually sold them for delivered. Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260, 261; State to Use of McCracken v. Blackman, 51 Mo. 319, 321; Barrett v. Western Union, 42 Mo. App. 542, 550; Brown v. Porter, 63 F. 62, 64, 26 L.R.A. 167; McMahon v. K.C. Rys. Co., 233 S.W. 64, 65; Hibbler v. K.C. Rys. Co., 237 S.W. 1014; Brown v. Hannibal St. J. Ry. Co., 99 Mo. 310, 12 S.W. 655; Hind v. Western Union Tel. Co., 278 F. 730; Hall v. Coal Co., 260 Mo. 351; Simon v. S.S. Kresge Co. (Mo. App.), 103 S.W.2d 523; 62 C.J. 200, sec. 235; Walquist v. K.C. Rys. Co. (Mo.), 237 S.W. 493; Hardesty v. Schaefer (Mo. App.), 139 S.W.2d 1031. (4) Instead of suing for special damages, plaintiff has sued for the difference between the price stated in the telegram as delivered and the price stated in the telegram as filed. Such difference is merely loss of a profit hoped for and is not in any sense special damage and is not recoverable. Kerns Lorton v. Western Union Tel. Co., 174 Mo. App. 435; Reynolds v. Western Union Tel. Co., 81 Mo. App. 223; Security Mortgage Co. v. Western Union Tel. Co. (Ark.), 216 S.W. 10; Collier v. Domino Macaroni Mfg. Co., 215 Mo. App. 345, 248 S.W. 981; 62 C.J. 236, 237, 252; Western Union Tel. Co. v. Spivey (Tex.), 83 S.W. 364; Jackson v. Western Union Tel. Co., 174 Mo. App. 435, 156 S.W. 801; Mickelwait v. Western Union Tel. Co. (Iowa), 84 N.W. 1036. (5) Proof of special damages is not admissible under plaintiff's petition because the petition does not plead special damages by stating facts showing that the number one rabbits cost plaintiff, delivered, more than he received for them delivered. Brown v. Hannibal St. J. Ry. Co., 99 Mo. 310, 12 S.W. 655; Van Buskirk v. Quincy, O. K.C. Ry. Co., 131 Mo. App. 357, 361, 362, 111 S.W. 832; McMahon v. K.C. Rys. Co., 233 S.W. 64; 1 Houts Mo. Pl. Pr., secs. 94, 131; Hall v. Mfg. Coal Coke Co., 260 Mo. 351, 370-372; Mayne v. K.C. Ry. Co., 287 Mo. 235, 243; Hibbler v. K.C. Rys. Co., 292 Mo. 14; Shafer v. Rec'rs. Met. St. Ry. Co., 192 Mo. App. 502, 503. (6) Where a plaintiff pleads in strictness in a justice court he is as much bound by his petition as though the action had been filed in the circuit court. Lyman v. Dale, 262 Mo. 353, 358; Stevens v. Bacher, 162 Mo. App. 284, 290; Usona Mfg. Co. v. Schubert-Christie Corp. (Mo. App.), 132 S.W.2d 1101; Connelly v. Parrish, 189 Mo. App. 1, l.c. 5; Strong v. Turner (Mo. App.), 122 S.W.2d 71. (7) The measure of damages laid down in plaintiff's instruction number 1 is vague and indefinite and is not supported by any evidence. Western Union Tel. Co. v. Shotter, 71 Ga. 760, 768. (8) Appellant's request for directed verdict should have been granted because plaintiff's petition does not state facts sufficient to constitute a cause of action and the verdict and judgment are without support. Alisky v. Bird et al., 63 S.W.2d 817, 819; Daniel Henry Co. v. F. Bierman Sons Metal Rubber Co., 121 S.W.2d 200, 203; Western Union Tel. Co. v. Bell (Tex.), 59 S.W. 918; Mansur v. Linney, 162 Mo. App. 260, 144 S.W. 872; Secs. 2185, 2186, 4929, R.S. 1929. (9) The instructions, as a whole, are conflicting, contradictory and confusing and tended to confuse the jury on the issue of damages. (10) Cases distinguished. Lee v. Western Union Tel. Co., 51 Mo. App. 375; Coscarella v. Met. Life Ins. Co., 175 Mo. App. 130, 157 S.W. 873.
Phil M. Donnelly for respondent.
(1) The rule as to special damages that appellant seeks to invoke in this case does not apply. This case is brought under the statute (Sec. 5334, R.S. Mo. 1939), and the courts have construed what special damages as used in that section mean and refer to. Hughes v. Western Union Tel. Co., 79 Mo. App. 133, 141; Barnett v. Western Union Tel. Co., 287 S.W. 1064, 1068; Kerns Lorton v. Western Union Tel. Co., 170 Mo. App. 649, 157 S.W. 109; Fitch v. Western Union Tel. Co., 150 Mo. App. 156, 130 S.W. 44; Tippin et al. v. Western Union Tel. Co., 185 S.W. 539, 543-544; Hughes v. W.U. Tel. Co., 79 Mo. App. 133; Smith v. W.U. Tel. Co., 57 Mo. App. 259; Fererro v. W.U. Tel. Co., 35 L.R.A. 548; State ex rel. Western Union Tel. Co. v. Pub. Serv. Comm., 264 S.W. 669, 673; McCarty et al. v. Western Union Tel. Co., 116 Mo. App. 441, 446; Reed v. Western Union Tel. Co., 135 Mo. 661. (2) Plaintiff proved the error in the telegram, Exhibit B, and, as this was a question of fact and the verdict of the jury was in favor of the plaintiff, this question is not before the court. Proof of error in transmitting a telegram makes out a prima facie case of negligence on the part of the telegraph company. Jackson v. Western Union Tel. Co., 174 Mo. App. 70. (3) Plaintiff's instruction number 1 is correct. Hughes v. Western Union Tel. Co., supra; Tippin v. Western Union Tel. Co., supra; McCarty v. Western Union Tel. Co., supra. (4) Appellant is in error that special damages have to be pleaded in a petition filed in a justice court. Lee v. Western Union Tel. Co., 51 Mo. App. 375, 379; Coscarella v. Metropolitan Life Ins. Co., 175 Mo. App. 130.
This is an appeal from a judgment for plaintiff (respondent here) in the sum of $109, rendered by a jury against defendant (appellant here) in the Circuit Court of Laclede County, Missouri, on October 6, 1939. The case was originally filed in the justice court in said county, wherein judgment was rendered for the plaintiff. Defendant thereupon appealed to the circuit court.
The case was tried in the circuit court on the petition of plaintiff, filed in the justice court. Said petition alleged in substance that, on November 25, 1937 (which we see was Thursday), the Schumacher Commission Company of St. Louis, Missouri, delivered to defendant in St. Louis, Missouri, its telegram addressed to plaintiff at Phillipsburg, Missouri, reading as follows: "Pay You Two Twenty Five Buy Heavy" and that defendant negligently delivered to plaintiff a telegram reading: "Pay You Two Seventy Five Buy Heavy."
The petition further alleged that, relying on the price named in said telegram, as delivered to him, plaintiff purchased 218 dozen rabbits (to which such telegram is conceded to have related) to sell "for a market of $2.75 per dozen;" and that said Schumacher Commission Company thereafter refused to pay plaintiff more than $2.25 per dozen for said rabbits; and "that by reason of the defendant's negligence in copying, transmitting and delivering said message the plaintiff has been damaged in the sum of fifty cents per dozen on the rabbits purchased or a total of $109.00;" for which judgment in favor of plaintiff was afterwards rendered in the circuit court. Thereupon defendant appealed to this court.
The evidence tended to support the allegations of such petition. It showed that plaintiff sent a telegram to Schumacher Commission Company, asking when delivery of the rabbits was to be made and received an answer that delivery could be made on the following Monday and that the price, without stating such price, had been wired. Thereupon plaintiff secured a number of dozen of such rabbits and delivered same to said Commission Company in St. Louis on Monday morning following; but received therefor only $2.25 per dozen, instead of $2.75 per dozen, as stated in the telegram delivered by defendant, and said Commission Company refused to pay more than $2.25 per dozen therefor.
A number of errors are charged in defendant's motion for new trial, and preserved here for review. It is first contended that the trial court erred in overruling defendant's request for a directed verdict. No other assignment of error need be considered by us, if appellant is correct in this.
It is appellant's contention that the sufficiency of the petition as filed in the justice court must be judged by a petition filed in the circuit court, and, if such petition fails to state a cause of action, as so measured, plaintiff must fail.
It is difficult to understand appellant's contention in regard to such petition. We are unable to see how any petition could more fully allege all the facts required to be stated under Section 4929, Revised Statute Mo. 1929 (now section 5334, R.S. Mo. 1939), under which this action was commenced. Said petition, being based on said section and alleging all the facts required by said section, must be regarded as stating a cause of action in the circuit court or elsewhere. The point is overruled.
It is contended that said petition, and the proof adduced, in support thereof, showed special and not general damages. It would be difficult to imagine a case where damages would more naturally flow from negligence in transmitting a telegram, than in the case at bar. Plaintiff had the undoubted right to believe, from the telegram as delivered, that be would receive $2.75 per dozen for the rabbits, instead of any lower price. The message showed on its face that it was concerning a business transaction. If this was not the natural and usual consequence of the established negligence of defendant, it is hard to imagine a case where more natural damages would follow. In Kerns v. Telegraph Company, 170 Mo. App. 642, l.c. 649, 157 S.W. 106, it was said: "It is true that where the action is for breach of the contract the damages must be such as rise naturally out of the breach and be such as may be reasonably within the contemplation of the parties. But where, as here, the action is in tort, or for a breach of defendant's public duty, the damages recoverable are such as might reasonably have been expected to occur under the particular circumstances. [Jones on Telegraph Companies, sec. 518.]"
We hold that the action is in tort and that the damages of plaintiff, alleged and proven, were the natural result of the negligence of defendant. Such damages would naturally follow a telegram such as delivered to plaintiff and the sendee would naturally act on the telegram, as delivered, and would suffer a loss.
Appellant has cited many cases holding that special damages must be pleaded, and we fully agree with appellant, insofar as actions on contract are concerned; but appellant, as we believe and hold, is mistaken in its view that the damages alleged and shown here were special damages, as such special damages are usually regarded in contract. While the statute refers to special damages, such damages have always been recoverable in actions for breach of public duty, if the damages alleged are the natural consequences of the negligence of defendant, regardless of whether such damages were in contemplation in an action on contract. [Tippen v. Telegraph Co., 194 Mo. App. 80, 185 S.W. 539, 543; Fitch v. Telegraph Co., 150 Mo. App. 156, 130 S.W. 44, 46; Kerns v. Telegraph Co., supra.]
This disposes of the first three assignments of error made by appellant contends in assignment IV that "The Court erred in reopening the case and in permitting defendant (plaintiff) to introduce evidence as to the cost of the rabbits," etc. Assuming that the assignment is sufficient, it has always been held that the matter of reopening a case and permitting further evidence to be introduced is largely in the sound discretion of the trial court. We see no evidence of abuse of discretion in this case and the assignment must be overruled. This has been the unvarying holding from Pearce v. Dansforth, 13 Mo. 360, to Jurkiewicz v. Insurance Company, 229 Mo. App. 262, 76 S.W.2d 721, l.c. 723, and we find no contrary view.
It is charged that "The trial court erred in giving instruction P-G-1 in behalf of plaintiff." The criticism is of the instruction reading:
"P.G. 1. The court instructs the jury that it is admitted in evidence that the Schumacher Commission Company filed with the defendant at its St. Louis office on November 25, 1937, the telegram referred to in evidence as Exhibit `A' and that the proper toll was collected for said telegram.
"Therefore the court instructs the jury that if you find and believe from the evidence that said telegram marked Exhibit `A' was filed with the defendant by the Schumacher Commission Company and read as follows: `PAY YOU TWO TWENTY-FIVE BUY HEAVY.' if you so find, and if you find that defendant, through its agents and employees negligently copied, transmitted and delivered said telegram so that said telegram as received by plaintiff read: `PAY YOU TWO SEVENTY-FIVE BUY HEAVY.' if you so find, and if you further find from the evidence that plaintiff, relying on said telegram as received by him, purchased 2616 number one rabbits referred to in evidence and delivered said rabbits to the Schumacher Commission Company, if you so find, and if you find from the evidence that the Schumacher Commission Company paid to the plaintiff the sum of $2.25 per dozen for said number one rabbits and refused to pay plaintiff the sum of $2.75 per dozen for said number one rabbits, if you so find, then and in that event plaintiff would be entitled to recover as damages such sum, if any, as you may find and believe from the evidence the plaintiff sustained as a result of said telegram referred to in evidence being erroneously copied, transmitted and delivered."
The criticism is apparently directed to the last lines of the instruction, which we have put in italics for convenience. There can be no dispute that this instruction followed the petition and the evidence. The criticism evidently is based upon appellant's contention that the damages alleged in said petition were special damages in contract and not general damages in tort. This we have held not to be correct and the instruction must be approved.
One of appellant's assignments of error is that the instructions as a whole are conflicting and confusing and tended to confuse the jury on the issue of damages. There does seem to be some conflict between instruction P.G.1, above quoted, and defendant's instruction D.G.4, which was as follows:
"D.G.4. The court instructs the jury that the plaintiff cannot recover in this action for the loss of anticipated profits, that is, what he hoped to gain by selling the rabbits to Schumacher Commission Company for $2.75 per dozen instead of $2.25 per dozen."
We do not find any possible conflict in any other instructions given for defendant. As we regard the record, the verdict is for the right party and no conflict in the instructions, even if such conflict be found to exist, could possibly change the result. The jury evidently followed instruction P.G.1, even if defendant's given instruction D.G.4 be regarded as in conflict therewith, and this assignment of error is overruled. [Sec. 1228, R.S. Mo. 1939.]
It remains for us to determine whether the damage to plaintiff under the instructions was based on actual loss or was based on anticipated profits. Here the actual price was quoted in the telegram as delivered. The recovery of plaintiff was properly based on the difference between the amount stated in said telegram and what he actually got, a difference of fifty cents per dozen rabbits. As the Commission Company actually paid $490.50, for what it graded as 2116 (218 dozen) number one rabbits, instead of $599.50, the price plaintiff would have received thereof at $2.75 per dozen, the plaintiff sustained a loss of at least $109. The loss was real, not speculative and was not for anticipated profits.
In Kerns Lorton v. Western Union Telegraph Co., supra, it was said: "The rule that damages for loss of profits are not recoverable is not based on any objection to loss of profits as such. In the cases holding them not recoverable it will be found that it was because they were not susceptible of definite proof. The elements of the loss were so uncertain, contingent and remote as to make the determination of the loss a pure guess. Where the profits depend on the business skill or ability of a person or firm, the state of the weather, the fickle favor of the public, the fluctuations of the market and such like, they are held not recoverable because no definite proof can be obtained whereby the loss can be calculated, not because they are profits. Whenever the items of such loss can be ascertained with reasonable certainty they have been allowed. [Hicks v. National Surety Co., 155 S.W. 71.]"
It follows, that the judgment below, based on such verdict, must be affirmed. It is so ordered. Smith and Fulbright, JJ., concur.