§ 892. WHAT IS THE DIRECT LOSS. 693 similar to the contract of B. with A. in the case supposed. The mere fact that the information is transmitted over a wire can make no difference. In the form in which it is claimed, the loss caused by failure to transmit a dispatch is usually consequential; but the information contained in a dispatch would seem to have an inherent value which in most cases might easily be proved; and this value on principle is the direct loss of the sender, or person who has the right to sue. It is not meant by what is here said that the cases can all be reconciled in accordance with this view; but all those in which the loss caused by cipher dispatches has been allowed, could be rested upon it. It has been already shown that a common carrier is held bound for any direct damages, as for the contents of packages however valuable.(") It is only in the case of consequential losses that the rule of Hadley v. Baxendale is generally applied. If the cases holding telegraph companies responsible for cipher dispatches are correctly decided, they might be rested on the right to recover direct damages, which would be more satisfactory than vague considerations of public policy, which are more proper for legislative than for judicial consideration. But it must be said that these cases are at present of only local authority, and opposed to the general current of decision. It is to be noted that the rule holding telegraph companies liable for the direct loss caused by cipher dispatches would not make them insurers or common carriers, for that is a question of liability, not of the measure of damages. It makes them liable to precisely the same extent that, according to general rules, they would be liable if the message had been put in intelligible language. (*) Little v. Boston & M. R.R., 66 Me. 239. In Strause v. Western Union Tel. Co.(") plaintiffs, who were bankers, had presented to them a bill purporting to be drawn by a bank at Peru. They telegraphed the bank inquiring if the draft was genuine, in answer to which a dispatch was sent saying that it was not. Through the carelessness of defendants' messenger, a forged dispatch was substituted for this one, saying that the bill was correct, and on delivery of this forged message, plaintiff cashed the draft. On these facts it was held hy Gresham, J., that the defendant was liable in tort for the whole amount, and that it made no difference that the plaintiffs had another remedy in contract on a genuine indorsement.(b) 893. Price of the message-Nominal damages.—It should be noticed, in connection with these cipher dispatch cases, that the right to recover nominal damages and the right to recover the price of the message are not the same. If the plaintiff is limited to the price of the message, it is not on the ground that he is entitled to nominal damages; but that the only substantial loss that he can prove is the money paid out. He must always lose at least this, in cases where an action will lie, unless the message has not been prepaid. (^) 8 Biss. 104. () In such a case, the action being in tort, there is no question of the application of the rule relating to damages contemplated. But if the cause of the loss had been negligence in transmission, according to those authorities which hold the knowledge by the company of the circumstances to be essential, the rule might have been very different. The dispatch was that the bank had drawn no such bill." Suppose by innocent mistake the word "no" had been omitted, and the inquiry had been in cipher, so that the company could not have understood the purport of the answer, or the act which it was calculated to lead the plaintiffs to do, according to many courts, the extent of recovery would have been the price of the message. Should such a trivial difference as this alter the measure of damages? § 894. MENTAL SUFFERING. 695 § 894. Mental suffering. It has been held in many cases that where a message notifying the plaintiff of the death or severe illness of a near relative is not delivered, the telegraph company is liable to compensate the plaintiff for the mental suffering caused thereby.(") So in Wadsworth v. Western U. T. Co., () Caldwell, J., said (p. 705): "To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. Wadsworth by its default, would be to disregard the purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken; and, furthermore, such a holding would justify the conclusion that the defendant might, with impunity, have refused to receive and transmit such messages at all; and that it has the right in the future to do as it has done in this case, or, at least, that it cannot be required to respond in damages for doing so. To such a result we think no court should submit. The telegraph company is the servant rather than the master of its patrons. It is their prerogative to determine what messages they will present, and so they are lawful it is bound by law, upon payment of its toll, to transmit and deliver them correctly and promptly. It has no right to say what is important and what is not, what will be profitable to the receiver and what will not, what has a pecuniary value and what has not; but its single and plain duty is to make the transmission and delivery with promptitude and accuracy. When that is done its responsibility is ended; when it is omitted through negligence, the company must answer for all injury resulting, whether to the feelings or to the purse-one or both-subject alone to the proviso that the injury be the natural and direct consequence of the negligent act." (*) Beasley v. Western U. T. Co., 39 Fed. Rep. 181; Reese v. Western U. T. Co., 123 Ind. 294; Chapman v. Western U. T. Co., 13 S. W. Rep. 880 (Ky.); Young v. Western U. T. Co., 11 S. E. Rep. 1044 (N. C.); Wadsworth v. Western U. T. Co., 86 Tenn. 695; So Relle v. Western U. T. Co., 55 Tex. 308; Stuart v. Western U. T. Co., 66 Tex. 580. Contra, Russell v. Western U. T. Co., 3 Dak. 315; West v. Tel. Co., 39 Kas. 93. () 86 Tenn. 695. If, however, the message does not show the sick person to be a relative, and no other notice of that fact is given, no recovery can be had for the mental suffering.(*) Upon failure to deliver a message that a sick person is better, no recovery can be had for continued anxiety.() No recovery can be had for mental anguish for failure to receive money transmitted by telegraph, without notice of facts making it natural that anguish would result. (c) In Logan v. W. U. Tel. Co.,() the plaintiff sued for non-delivery of a telegram sent by him to his son, summoning him home to the deathbed of his mother. On demurrer, it was held that plaintiff was entitled to recover at least nominal damages, "including the loss of the price of the telegram." But nominal damages in such cases, as stated above, could not include the price of the telegram. The latter always represents substantial damages, though under the most restricted measure. § 895. Avoidable consequences.-The rule that the plaintiff cannot recover for consequential losses which with ordinary care he could avoid applies in cases against telegraph companies as elsewhere. (°) Under ordinary circumstances, the proper course for the sender on learning that his message has not been forwarded, is to repeat it.() But the sender may not know that it has not been (^) McAllen v. Western U. T. Co., 70 Tex. 243; Western U. T. Co. v. Brown, 71 Tex. 723. () Rowell v. Western U. T. Co., 75 Tex. 26. (c) Western U. T. Co. v. Simpson, 73 Tex. 422. For full discussion of this subject, see § 45. (4) 84 Ill. 468. (*) Daughtery v. Am. Tel. Co., 75 Ala. 168; Dorgan v. The Tel. Co., I Am. L. T. R. N. S. 406. (1) Daughtery v. Am. Tel. Co., supra; De Rutte v. N. Y. A. & B. Tel. Co., 1 Daly 547, 560. §§ 896, 897. CAUSA PROXIMA. 697 forwarded. It may be natural for him to act upon the supposition that it has been sent, but has failed to reach its destination. In such a case, if he is put to expense, this expense will be his measure of damages. So where plaintiff telegraphed to his attorney at Buffalo, “Hold my case till Tuesday or Thursday. Please reply," and getting no reply, after waiting a day, went to Buffalo, with counsel to try the case, at an expense including counsel fee of $310, it was contended that he should have gone to defendant's office a second time; but it was held that defendant was responsible in this amount.(*) In the opinion of Daly, C. J., this question is referred to as one of "contributory negligence." But the rule invoked by defendant was clearly that of avoidable consequences, as it affected, not the right of action, but the extent of recovery. § 896. Exemplary damages.—In a proper case exemplary damages may be recovered against a telegraph company. Thus when plaintiff was engaged in Cincinnati as a commercial news agent, furnishing to customers in that city financial and stock reports, which he obtained over defendant's wires from New York, it was held that he might recover exemplary damages for wilful delay in transmission of messages, for the purpose of giving precedence to other business of a rival agency.() § 897. Causa proxima.-The rule of proximate cause is often of great assistance in defining the liability of telegraph companies. To ascertain whether any damages at all can be recovered,―i. e., whether an action will lie,— the preliminary question must always be asked whether the loss complained of arises from the act or omission of (*) Sprague v. Western Union Tel. Co., 6 Daly 200. |