The appellant undertook to transmit and deliver to addressee without unreasonable delay this message, and should be held liable for the consequences of its negligence that in the usual course of events and according to human experience were likely to ensue, and which, from the nature of the message, might have been anticipated with reasonable certainty. We might not be sure what course would be pursued upon notice involving pecuniary or financial transactions, or upon notice that certain stocks and bonds were falling or rising, or upon information concerning ordinary speculative ventures. But what appellee would have done upon receipt of this message, when measured by the ordinary rules of human experience, and judged by standards that regulate the conduct of people generally, is not of doubtful or uncertain import."20

Contrary to Joyce on Electric Law, § 830, vol. 2, "We are of the opinion that mental suffering is a proper element of damages in these telegraph cases of sickness and death where the telegraph companies have negligently caused such injury through failure to perform their duty," and in the Kentucky case just cited, the preponderance of authority is to the effect that the sendee cannot recover damages for mental anguish unaccompanied by pecuniary loss or physical pain, unless there is some statute authorizing such recovery. Rule Governing Damages Recoverable.

As to the measure of damages which may be recovered for delay or error in transmission or nondelivery of a message, there is considerable conflict. Some authorities hold that since a duty to the addressee arises by reason of the contract, the conditions of that duty are defined by the contract, at least where the addressee had notice of the limitations.21

The better view, however, seems to be 20 Western U. Teleg. Co. v. Caldwell, 126 Ky. 42, 102 S. W. 840, 12 L.R.A. (N.S.) 748. 21 Ellis v. American Teleg. Co. 13 Allen, 226.

22 New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338.

23 New York & W. Printing Teleg. Co. v. Dryburg, supra.

24 Western U. Teleg. Co. v. Richman, 5

that a liability in tort imposed by law cannot be restricted by mere notice of an agreement to which the addressee is not a party.22

The rule for ascertaining damages which is generally followed is that enunciated in Hadley v. Baxendale, 9 Exch. 353, 5 Eng. Rul. Cas. 502: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be such as may fairly and reasonably be considered either arising naturally,i. e., according to the usual course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, as the probable result of the breach of it."

This rule has been generally applied with respect to the damages recoverable by the sendee as well as the sender. In Pennsylvania, in actions of tort brought by addressees for the erroneous transmission of intelligible messages, the plaintiffs were permitted to recover the actual damages they sustained.23

In Western U. Teleg. Co. v. Hall, 124 U. S. 444, 31 L. ed. 479, 8 Sup. Ct. Rep. 577, it was held that damages for which a party may recover for a breach of contract are such as naturally and ordinarily flow from the nonperformance. "They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative, or contingent." 24

It appears that not only can the contract price be recovered, but also profits.25

Some of the courts, including New York, Minnesota, Wisconsin, Massachusetts, and Maine, hold that only nominal damages may be recovered from a telegraph company undertaking to send a telegram, unless the sender informs the

Sadler (Pa.) 26, 19 W. N. C. 569, 8 Atl. 171; Booth v. Spuyten Duyvil Rolling Mill Co. 60 N. Y. 487.

25 Bowie v. Western U. Teleg. Co. 78 S. C. 424, 59 S. E. 65; Hayes v. Western U. Teleg. Co. 70 S. C. 16, 106 Am. St. Rep. 731, 48 S. E. 608, 3 Ann. Cas. 424, 67 L.R.A. 481; Western U. Teleg. Co. v. Lehman, 105 Md. 442, 66 Atl. 266.

operator of the special circumstances which constitute its importance and the need of its correct and prompt transmission.26

The question as to what circumstances would be sufficient notice to the company of the importance of the message has been discussed in connection with Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 548, and Joshua L. Bailey & Co. v. Western U. Teleg. Co. 227 Pa. 522, 76 Atl. 736, 19 Ann. Cas. 895, 43 L.R.A. (N.S.) 502.

Jones on Telegraph & Telephone Companies, § 519, says: "It is presumed they (telegraph companies) know, where no information is given to them to the contrary, that all messages are of importance, and that great loss or injury may result of a failure on their part to properly discharge their duty; and that they are therefore supposed to have contemplated all the damages flowing naturally and directly from such failure, though they may not have had actual knowledge of what damages might result at the time of accepting the message.'

In § 535, the same author states: "If it (the message) is sufficiently plain to indicate that it relates to business transactions of much importance, and that loss will probably result unless it is promptly transmitted and delivered, recovery will not be limited to nominal damages."

In Postal Teleg. Cable Co. v. Lathrop, 131 Ill. 575, 19 Am. St. Rep. 55, 23 N. E. 583, 7 L.R.A. 474, it was said: "If enough appears in the message to show that it relates to a commercial transaction between the correspondents, it will be sufficient to charge the company with damages resulting from its negligent transmission. It certainly cannot be contended that the agent must be informed of all the facts and circumstances pertaining to a transaction referred to in a telegram which are known to the parties themselves, to make his company liable for more than nominal

26 Western U. Teleg. Co. v. Hyer Bros. 22 Fla. 637, 1 Am. St. Rep. 222, 1 So. 129.

27 Manville v. Western U. Teleg. Co. 37 Iowa, 217, 18 Am. Rep. 8; United States Teleg. Co. v. Wenger, 55 Pa. 267, 93 Am. Dec. 751.

damages. If it should be so held, the telegraph would cease to be of practical utility in the commercial world."

In Western U. Teleg. Co. v. Lehman, 105 Md. 442, 66 Atl. 266, and Western U. Teleg. Co. v. Hyer Bros. 22 Fla. 637, 1 Am. St. Rep. 222, 1 So. 129, plaintiffs were permitted to recover more than nominal damages, although the companies were not actually told of the importance of the messages; the courts holding that the nature of the telegrams, as well as the fact that the operators knew that the parties to the messages were business concerns, was sufficient to charge the companies with notice of their importance.27

To entitle a party to maintain a suit against a telegraph company for damages sustained by inexcusable delay or error in transmission or nondelivery of a telegram, it is necessary to show that the damage resulting therefrom was not too remote and speculative. Such conduct on the part of the telegraph company must be a proximate cause of the loss, irrespective of whether the plaintiff be the sender or receiver of a message.

28

The rule with respect to damages is stated in Cyc. vol. 37, p. 1754, as follows: "Cipher or obscure messages not understood by the operator make the company liable for nominal damages. If the message shows it is a business transaction, it is sufficient in accordance with the general rule of damages; the plaintiff can recover only such damages as are the proximate result of the negligence or default complained of. There can be no recovery for damages not due to the company's negligence but to some other independent or intervening cause, or for damages which, although traceable to the negligence of the company, are too remote to be considered as the natural and proximate results thereof. In the absence of special limitations the company will be liable for all damages. which are the natural or proximate result of its negligence as default, and may

28 Western U. Teleg. Co. v. Merrill, 144 Ala. 618, 113 Am. St. Rep. 66, 39 So. 121; Western U. Teleg. Co. v. Cross, 116 Ky. 5, 74 S. W. 1098, 76 S. W. 162.

reasonably be said to have been within the contemplation of the parties."

Just what constitutes the proximate cause and what circumstances are too remote to permit recovery are clearly illustrated in Chapman v. Western U. Teleg. Co. 90 Ky. 265, 13 S. W. 880, which was an action for failure to deliver a telegram announcing the serious illness of the plaintiff's father and another telegram announcing his death. The plaintiff sought to recover damages not only for injury to his feelings by being prevented from attending his father in his last illness and being present at his burial, but for a pecuniary loss he claimed to have sustained by not receiving a donation that his father would have made him if he could have seen him in his last illness. The court rejected this latter claim, saying "that it did not naturally follow that, if the telegram had been delivered promptly, he would have received the donation, that his father might or might not have given it, and that such loss was not in contemplation of the parties at the time the message was sent, nor could it (telegraph company) have anticipated that such a loss would arise from a breach of the contract."

In Smith v. Western U. Teleg. Co. 83 Ky. 104, 4 Am. St. Rep. 126, the plaintiff, a speculator in New York stock, who failed to receive a telegram relating to stock transactions in which he was interested, alleged if the telegram had been delivered he would have kept the margin good and saved himself several thousand dollars' loss, which he sought to recover as damages. The court in awarding him nominal damages, or the cost of the telegram, said that the damages sought to be recovered were too remote, that they did not follow naturally from a failure to deliver the telegram, and in ordinary course of events could not be expected to arise from its nondelivery, nor did the contents of the message inform the company of the probable action the plaintiff would take upon its delivery.

In cases involving damages due to mental anguish, when such damages are permitted, it is for the jury to determine the amount. This was so held in Western U. Teleg. Co. v. Caldwell, 126 Ky.

42, 102 S. W. 840, 12 L.R.A. (N.S.) 748, in which on appeal the supreme court refused to reverse the finding of the trial court, because the appellant contended that the verdict of the jury, $1,000, was excessive, the court saying: "The recovery of $1,000 in damages is more than should have been awarded, but we do not feel disposed to reverse because the amount seems excessive. It is extremely difficult-in fact, we might add, impossible-to fix any certain standard of recovery in cases of this character. In the very necessity of the case, the amount must be left to the judgment and discretion of the jury, and, unless their award is so excessive as to be palpably unjust, it will not be disturbed."

In the determination of the amount of damages to which the sendee is entitled in cases involving business transactions, no better illustration showing the method to be pursued can be found than that of Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 548. In that case the plaintiff claimed $500 as loss of profit and $10,000 as damage suffered by loss of trade. The plaintiff had received a telegram in which potatoes were offered at 45 cents per bushel, but the sender in the message delivered to the company had quoted 55 cents. The plaintiff, upon receipt of the bill of lading accompanied by a bill at 55 cents per bushel, refused to accept the shipment, although he had contracted to sell the potatoes at 65 cents per bushel. In passing on the question as to loss of profits, Chief Justice Shepard said: "The plaintiff ought to recover the actual pecuniary damage that he may have sustained through a failure to obtain the potatoes at the price which he had reason to suppose they had been offered to him.

His loss was of certain ascertainment and apparently the natural and direct result of the defendant's negligence in misquoting the price. If the plaintiff had accepted the potatoes when tendered him, his loss would have been but 10 cents per bushel. He cannot recover the profits that he would have made from the resales that he had contracted for, because that loss was the result of his own conduct. . . In such a case it is a just and reasonable

rule that demands the exercise of ordinary care by the party injured to prevent greater injury and increase of damages."

As to the alleged damage sustained by loss of trade, it was held that such damage was too remote, and could have been prevented by the plaintiff.

When the sender of the message is acting as the agent of the sendee, it is generally held for any damage caused by delay in delivery or error or nondelivery, the sendee, being the principal, is bound by the stipulations as sender, and is limited in his recovery of damages. In Halsted v. Postal Teleg. Cable Co. 193 N. Y. 293, 127 Am. St. Rep. 952, 85 N. E. 1078, 19 L.R.A. (N.S.) 1021, it was said: "It was alleged in this complaint that 'plaintiffs requested the Cannon Manufacturing Company to send them by wire the prices' for the goods, and was shown to be the fact by the evidence of the plaintiffs. The Cannon Manufacturing Company, therefore, in transmitting the information by means of the telegraph, was made the agent of the plaintiffs for that purpose. It is our judgment that where the receiver of a message has by special request procured it to be sent by telegraph, he becomes bound by any reasonable contract made by the sender with the telegraph company for its transmission, and is limited in his claim for any damages for loss occasioned by error or mistake in transmission when the stipulations for the repetition or for the insurance of the message had not been availed of to the amount stipulated in the contract."

Conclusions.

After very carefully examining the authorities with respect to the effect of special stipulations on the reverse side of a telegraph blank, upon the right of the sendee to maintain an action, and the extent of his recovery thereunder, it appears there are two rules on the subject, the one known as the English doctrine and followed by the courts of England and Canada; the other the American rule, now generally adhered to by all the states in the Union. The former rule holds that the right of recovery against telegraph companies must be founded in contract, and in the

absence of facts making the sendee a party or privy to the contract, or unless the message was an intentional fraudulent representation, he has no right of action. Under the American rule, recovery is generally permitted on one of the following grounds: (1) Telegraph companies are public agencies and therefore owe a duty to the sendee as well as sender to transmit the message correctly. No state, however, with the exception of Kentucky, has gone to the extreme of holding that telegraph companies are common carriers and liable to the same extent. (2) When the sender is acting as agent of the receiver, some courts hold the sendee is bound by the stipulations on the blank, while other courts hold the contrary. (3) The general trend of opinion is that when the telegraph company knows the sendee is to be benefited by the message, or when the message itself indicates a commercial transaction of importance or pecuniary value, the company is liable to the sendee.

As to what facts constitute sufficient notification, the courts are in conflict, some holding that the use of obscure or code words passing between commercial concerns is sufficient notification, while others hold that the message itself must clearly indicate a business transaction or in some way actual notice of the importance of the message come to the attention of the company's operator.

or

Interferences with the correct prompt transmission of messages which are beyond the control of the company, such as acts of God or a public enemy, as in the case of common carriers, exempt the company from liability.

As far as we have discovered, with the exception of Kentucky and New Mexico, stipulations limiting the time within which claims must be presented are held valid.

Claims for mental anguish unaccompanied by pecuniary loss or physical pain are generally disallowed on the ground that mental anguish is not considered a legal damage. A few states, however, have legislated on the subject so as to permit a recovery.

As to the amount of damages recoverable, the courts generally follow the rule enunciated in Hadley v. Baxendale, 9