Western Union Telegraph Co. v. N. Lehman & Brother

Boyd, J., delivered the opinion of the Court. The appellees sued the appellant for damages alleged to have been sustained by them for its delay in delivering a message sent by them to Chicago. The appellees are dealers in live cattle in Baltimore and a Mr. Hexter had been buying cattle for them in Chicago for a long period of time. On the evening of July 13th, 1904, they sent a night message to Mr. Hexter, whose office was in the exchange building at the Stock Yards in Chicago, which read: “If reasonable ship tomorrow, Thursday, four to six loads marketers. ” The term “marketers” means cattle such as plaintiffs would want to sell to the retail trade in Baltimore.

That term distinguishes the cattle for that trade from those which are to be exported— “marketers” being supposed to weigh about 1,200 pounds and “exporters,” as they call them, weighing about 1,400 pounds. They aim to ship twenty head of “marketers” to the ³²⁶ car load. The message should have been delivered early the next morning in time for the opening of the stock market at 8.00 A. M., but Mr.,Hexter did not receive it until about one o’clock, P. M., on July 14th. The telegraph company had an office in the same building, and Mr. Hexter testified that “the custom regarding the delivery of night messages by the Western Union atthe Union Stock’Yards of Chicago is that theyare either delivered at the office of the parties to which theyare directed, of that the party goes to the Telegraph Company’s office for them;” that he inquired at the company’s office two or three times that morning regarding such a telegram, and was informed there was none for him; he usually received orders for the purchase of cattle from seven to eight o’clock in the morning; that “In the ordinary course of events, I would have received the telegram mentioned at about 7 o’clock, A. M.,” and that it was and had been his custom to go to the office of the company every morning and make inquiries for messages.

At the time, there was a strike at Chicago among the butchr ers, and for that reason cattle could be purchased there at better figures than usual. The record does not state clearly the time the message was received at Chicago, but there is written on the message which Hexter received “10 59 P.” which the appellees claim in their brief meant that the telegram was received at 10. 59 P. M. However that may be, there was no attempt on the part of the company to explain why it was not delivered earlier, or to show any cause for delay in receiving or delivering the telegram at Chicago. The expression “if reasonable, ship” meant that Hexter was not to buy unless price was in his judgment reasonable. That referred to the' condition of the Chicago market, and one of the plaintiffs testified “the Baltimore end I would look out for.” The appellees claim that if Hexter had received the telegram in time, he would have bought the cattle, which would have been shipped on Thursday, the 14th, and if cattle are shipped on Thursday, “they generally get here Sunday; maybe Monday morning.” At that time Monday was market day in Baltimore.

One of the plaintiffs testified that they had a regular ³²⁷ trade which they supplied every market day, and wanted those cattle for that trade. He said “I had plenty of buyers waiting to take every bullock if they came here.” The Court told the witness to tell the jury definitely what the plaintiff’s loss was, to which he could testify, by reason of the failure of the cattle to arrive, and he replied : “I am satisfied that if I had had these cattle here they would have brought us a profit of $ 5.00 a head, had they come here for that market day.” There are fifteen bills of exception in the record — fourteen of them presenting rulings on the admissibility of evidence and the fifteenth embracing the prayers, of which the plaintiff’s offered two, which were granted, and the defendant seven, all of which were rejected. We will first consider the prayers. The conclusion of the plaintiffs’, first is in the language used in their prayer in the case between these parties, decided in April last, 105 Md. 442 .

After stating the facts relied on by the plaintiffs in the respective cases, the prayers in each concluded: “and if they shall further find that the defendant did not use such ordinary care and diligence in delivering said telegram as is usually used and adopted by prudent business men in like business, and if they shall further find that, by reason of such negligence, the loss in question arose, then the plaintiffs are entitled to recover to such an extent as the jury shall believe from the evidence they sustained loss.” In the former case we quoted from B. & O. R. R. v. Carr, 71 Md. 143 , what Judge Alvey said, in delivering the opinion of the Court, in reference to a similar instruction which in part was: “This left the whole question of damages at large, without definition by the Court, to the discretion of the jury, and without any criterion to guide them. * * * The Court must decide and instruct the jury, in respect to what elements, and within what limits, damages may be estimated in the particularaction.” We held in the other case that we could not approve of that prayer, and it should not have been granted, but inasmuch as the jury found a verdict for the precise sum testified to as the actual loss sustained, the defendant was not injured, and hence, under our well established rule, there being no injury there was no reversible error. ³²⁸ In that case the plaintiffs had contracted for space for 505 cattle to be shipped on a steamer which was to leave Baltimore November 14th, 1903. Under an arrangement with the steamship company the plaintiffs were notified, about a week before the steamer was to leave, of the day it would leave, and a day or two before that the company would again notify them when to have the cattle alongside the vessel. They were notified on November 7th that the steamer would leave on the 14th instant, The plaintiffs had purchased, through their agents in Tazewell, Va., 331 head of cattle, which they directed their agents to ship to Baltimore on November 1 ith, in order to make up that shipment, and also instructed them to telegraph them when the shipment was made. On that day those cattle were shipped and their agents- sent a telegram the same afternoon saying: “Shipped cattle today.” The telegram was received in Baltimore by the telegraph company at 9:30 P. M. on the nth, at its office only two blocks from the residence of the plaintiffs, but was not delivered until 3 o’clock of the afternoon of the 12th.

Not receiving any telegram on the night ofthe 1 ith, or the morning of the 12th, the plaintiffs, to. insure the loading of the steamer, as they had to pay for the space whether they used it or not, telegraphed to other points for the shipment of 171 cattle which they had in Virginia and which they intended for shipment by a later steamer. On the 13th the 331 cattle shipped from Tazewell arrived in Baltimore, the consequence being that the plaintiffs had on hand in Baltimore 164 head of cattle for which there was no space in the steamer. That was on Friday and there was no opportunity for them to dispose of them in Baltimore before Monday, which was the next market day there. As there was a market on Saturday in Philadelphia the plaintiffs immediately shipped them there and sold them on Saturday — one of the plaintiffs going with them and personally attending to the sale.

According to the evidence there was a loss of $4.43 a head on the 164 cattle, aggregating $726.52, which was the amount ofthe verdict. Under the circumstances of that case we' were of the opinion that the plaintiffs were entitled ³²⁹ to recover for the loss they had sustained, by reason of the negligence of the defendant in not delivering the telegram more promptly. There was undoubted negligence and it resulted in the plaintiffs having 164 cattle in Baltimore which they could not dispose of there. In order to avoid unnecessary loss, it was hot only the right but the duty of the plaintiffs to do what they reasonably could to that end.

It was not shown that it was not reasonable and wise to pursue the course they did, and inasmuch as they had offered evidence tending to prove their actual loss, and the verdict of the jury corresponded to the cent with that proof, we did not feel justified in disturbing the judgment, by reason of the error in the prayer. But in this case there was no such definite evidence of damages, which the plaintiffs were entitled to recover, as would justify us in refusing to reverse for an error committed, on the ground that there was no injury done by that error. The verdict it is true was only for ,$450, but how that was reached, no one can tell from the record. The injury complained of was not from having so many cattle on hand, by reason of the negligence of the appellant, that the appellees could not dispose of them in Baltimore, and hence sought another market where they met with loss in the sale of them, as it was in the other case.

No money had been expended by the appellees and no cattle were purchased at a greater price than they could have been gotten for, if the telegram had been delivered within a reasonable time, for none were purchased at all in consequence of the telegram. The evidence as to the appellee’s loss of profits was altogether indefinite and uncertain (even conceding that to be a proper element, which we will consider later). In the first place it was not clearly shown whether Hexter, the agent in Chicago, would have purchased four or six carloads. The telegram left that to his discretion, and while he did answer, “Yes,” to the question: “Had you received this telegram, when, as you state, you should have received it, would you have bought the cattle called for by it * *?” he did not say how many he would or could have bought and “the cattle called for” were “four to six loads,” ³³⁰ But there is very little in the record to show that the appellees really lost any profits by not having these cattle on that market day.

We have stated above what the evidence was on that subject, .but even if it be conceded that they might have made a head profit on those particular cattle, if they had been in Baltimore on that day, it is not shown that they did not get other cattle, and supply their customers, on which they made that or some other profit. The testimony was that the appellees had “a regular line of customers to sell cattle to on the Baltimore market,” and presumably if they were unable to furnish their customers with cattle wanted by