Opinion
(February Term, 1894.)
Negligence — Telegraph Company — Failure to Deliver Telegram — Consequential Damages — Nominal Damages.
1. Consequential damages, to be recoverable in an action of tort, must be the proximate consequence of the act complained of; and such damage must be capable of computation with reasonable certainty.
2. Where defendant telegraph company failed to deliver to plaintiff a message sent to the latter by the Comptroller of the Currency as follows: "Would you accept receivership of First National Bank, Wilmington? Bond, $35,000; compensation, $200 per month, subject to future modification," and the pleadings in an action for damages for such failure to deliver raised no question as to exemplary damages, the plaintiff was entitled to recover only nominal damages, inasmuch as if the message had been received and an affirmative reply sent there would have been no legal obligation upon the government or its appointing power to confer the office upon the plaintiff.
ACTION, tried at Fall Term, 1893, of DAVIDSON, before Whitaker, J., and a jury.
George F. Bason and Watson Buxton for plaintiff.
Jones Tillett for defendant.
The complaint was for damages for nondelivery of the following telegram: (441)
"WASHINGTON, D.C., 17 December, 1891.
"Z. V. WALSER, Lexington, N.C.:
"Would you accept receivership First National Bank, Wilmington? Bond thirty-five thousand. Compensation two hundred dollars per month, subject to future modification.
"E. S. LACEY, Compt."
The complaint alleges that by the failure of plaintiff to receive said message and accept the position tendered him by the said Comptroller of the Currency, which plaintiff would have done, the plaintiff failed to receive the office or position, which would have been worth to the plaintiff at least four thousand dollars, as plaintiff believes, to the damage of the plaintiff two thousand dollars.
The judge charged the jury:
(446) 1. That in no aspect of this case can the plaintiff recover more than nominal damages.
2. That nominal damages meant five cents, twenty-five cents, or fifty cents, or other small amount.
The jury answered the first issue "Yes" and the second issue "Seventy-five cents," and there was judgment accordingly; and from the refusal of a motion for a new trial for misdirection in the charge of the judge, as set out above, plaintiff appealed.
The telegram set out in the complaint does not constitute an offer or tender of an office by the comptroller to the plaintiff. It is an inquiry whether the plaintiff would accept a position named at the compensation stated. If it had been promptly delivered, as it should have been, and an affirmative answer had been returned, there would still have been no legal obligation upon the government or its appointing power to have conferred the office upon the plaintiff.
While for the wrong done him by the negligence of the defendant in its failure to deliver the telegram the plaintiff is entitled to nominal damages at least (as has been so recently held by this Court that it is unnecessary to elaborate the proposition, Young v. Telegraph Co., 107 N.C. 370), still there must be some measure by which damages may be computed before their assessment can be submitted to a jury.
What would be the measure of the plaintiff's damage? For the best of reasons, often reiterated in all appellate courts of common law jurisdiction, juries are not permitted to enter the regions of (447) conjecture or speculation. When it is possible to ascertain a sum certain, of which the plaintiff has been deprived by the action or neglect of defendant, there is no difficulty in making the assessment. If there had been an unconditional offer of employment for a time certain, or, perhaps, if the length of the employment could have been reasonably computed and the compensation had been fixed, or its reasonable value determined, there would have been a fair measure of the plaintiff's injury. Can the damages which would naturally be expected to follow the injury be computed?
There is no reasonable certainty that plaintiff would have been appointed to the office. The result of the failure to deliver the message is simply that plaintiff may have lost an office. Consequential damage to be recoverable in an action of tort must be the proximate consequence of the act complained of. Sledge v. Reid, 73 N.C. 440. And such damage must be capable of computation with reasonable certainty.
The conditions failed in the present case because there was no such offer the neglect to communicate which deprived the plaintiff of the lucrative place named in the message.
While we have found no case directly in point in our own reports there is no lack of authorities in the courts of other States. In Telegraph Co. v. Connelly, 2 Texas Civil Appeals — civil cases (reported in Chicago Legal News, 29 March, 1884), a telegram was sent from one Harris to Connelly in these words: "If you want a place, come on first train. Answer." Connelly brought suit alleging that by the failure of the telegraph company to deliver this message he lost the job, and the Court held that he was entitled to nominal damages only, and, in speaking of the telegram, said: "It does not contain any proposition which, if accepted by appellee, would amount to a contract binding upon Harris. If appellee had answered the telegram that he wanted a place and would go to Milano on the first train, and he had (448) gone on the first train, Harris would not have been under any legal obligations to give him a place. Suppose appellee had received the telegram and had gone to Milano on the first train and Harris had declined to give him the place, or had declined to employ him at $75, could appellee have maintained an action against Harris to compel him to enter into such contract, or to recover damages for his refusal to do so? Clearly not. . . . How, then, can it be contended that he is entitled to recover of appellant an alleged loss of gain, which gain might never have been realized, even if the telegram had been properly delivered to him?" A number of authorities are cited to support the ruling.
In Merrill v. Telegraph Co., 78 Me. 97, in which the plaintiff's agent wired him that employment had been secured for him at $2.25 per day, commencing with September 1st, the plaintiff failed to get the message in time to reach the place on September 1st, and he therefore claimed that by the negligent failure of the telegraph company to deliver the message he lost the benefit of this contract, and he sued for damages. The Court denied the right to recover more than nominal damages, and said: "The contract was defeasible at the will of either party. How, then, can any substantial damages be measured? Had the engagement to employ the plaintiff been for any stipulated definite period not over one year the plaintiff would have a right to demand damages that could be definitely measured and assessed. He would then have been entitled to enjoy the fruit of his labor during the time of his engagement; but under the terms of the contract, in proof he was liable to be dismissed from his employment as soon as he had entered upon it, and it cannot be known what damages he has suffered in the premises. The plaintiff must prove his damages before they can be assessed. The case fails to show facts that warrant greater than nominal damages."
(449) In Clay v. Telegraph Co., 81 Ga. 285, a party wired the plaintiff to come to a certain place prepared to do certain work. Plaintiff failed to get the message and sued for damages for loss of the job. The Court held that plaintiff had only lost the opportunity of making a contract, and was entitled only to nominal damages. The message in question was merely a request for information upon which to base some contemplated but undisclosed action, and damages arising from a failure to deliver such message are too remote. Thompson, Electricity, sec. 321.
It follows that the plaintiff, having been injured, is entitled to some compensation; but the damages can only be nominal, because there is no measure by which they can be computed, unless, indeed, by reason of wilful or reckless disregard of plaintiff's rights, or some aggravation of the injury, the law will authorize the jury to disregard the measure and give exemplary damages, the limits of which are only subject to the restraining power of the court's discretion; or unless there be such gross negligence charged and shown, coupled with some mental anguish or distress, its consequence, as will warrant the award of compensation for the injured feelings.
The issues submitted by consent point to the simple question whether the defendant negligently failed to deliver the message, and if so, what was the damage to plaintiff?
There were no instructions asked upon the question of exemplary damages, and we are led to the irresistible conclusion that it did not arise upon the pleadings and was not presented upon the issue. In this view we concur with his Honor that in no aspect of the case could the plaintiff recover more than nominal damages.
No error.
Cited: Machine Co. v. Tobacco Co., 141 N.C. 294; Tanning Co., v. Tel. Co., 143 N.C. 378; Mfg. Co. v. Tel. Co., 152 N.C. 161; Hardison v. Reel, 154 N.C. 278; Gardner v. Tel. Co., 171 N.C. 409.
(450)