Brooks & Son v. Western Union Tel. Co.

message in the form in which it is delivered, or in omitting to send it at all, provided the message discloses enough of its nature and importance to put an ordinary and prudent person upon inquiry. 2 Shearman & Redfield, Neg., 754; Thompson on Electricity, 297; Daugherty v. Am. Union Tel. Co., 75 Ala. 168, 51 Am. Rep. 435; Wes. Union Tel. Co., v. Way, 75 Ala. 542, 4 South. 844; Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544, 1 Am. St. Rep. 446; Rittenhouse v. Independent Line of Tel., 44 N. Y. 263, 4 Am. Rep. 673; Thompson v. Wes. Union Tel. Co., 64 Wis. 531, 25 N. W. 789, 54 Am. Rep. 644; Wes. Union Tel. Co. v. Hyer Bros., 22 Fla. 637, 1 South. 129, 1 Am. St. Rep. 222; Hart v. Wes. Union Tel Co., 66 Cal. 579, 6 Pac. 637, 56 Am. Rep. 119; Wes. Union Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; Wes. Union Tel. Co. v. Fatman, 73 Ga. 285, 54 Am. Rep. 877; Wes. Union Tel. Co. v. Weiting, 1 White & W. Civ. Cas. Ct. App., sec. 801; Wes. Union Tel. Co. v. Reynolds, 77 Va. 173, 46 Am. Rep. 715; Wertz v. Tel. Co., 7 Utah 446, 27 Pac. 172, 13 L. R. A. 510; Id., 8 Utah 499, 33 Pac. 136.

The majority of these cases go to the extent of holding that when a telegraph company contracts to transmit a message over its line, and receives the usual tolls therefor, it is legally bound to use ordinary care and diligence in performing such service, and that it will be liable for all damages that are the natural, immediate and proximate result of any negligence on the part of its agents in not correctly transmitting such message, or in failing to send it at all, notwithstanding the message, may be obscure, and its import and importance not known to the company or its agents.

The first message herein showed on its face that it referred to a commercial transaction. This fact, together with the fact that respondent B. B. Brooks endeavored to send a second message relating to the same matter, with word "RUSH" written conspicuously thereon, was notice to the appellant that these messages were important, and, if appellant had desired any further infor

3

Brooks & Son v. Western Union Tel. Co.

mation on this point, it no doubt could have obtained it by inquiring of Brooks when he delivered the message to appellant for transmission over its wires. Appellant, having received the messages, was legally bound to use ordinary diligence and promptness in sending them as directed, and the burden was upon the appellant to excuse or justify its omission in this respect, and, as it made no attempt to do so, respondents were entitled to recover whatever damages they suffered which the evidence showed was the natural and proximate result of such neglect and failure to send the messages.

4

The record shows that respondents had bargained to sell the horses to Searcy for $11 per head, and that the sale would have taken place but for appellant's failure to transmit and deliver the messages referred to. When respondent B. B. Brooks arrived at Green River with the horses, and found that Searcy had not arrived, and that it was uncertain whether he would be there at all, it was incumbent upon him, if he intended to hold either Searcy or appellant responsible for all damages sustained because of his inability to dispose of the horses, as per his bargain with Searcy, to make the best disposition of them that was possible under the circumstances, and thereby prevent, so far as in his power, the accumulation of damages; and, if it were necessary to sell the horses, to do so for the highest price obtainable under the circumstances. The measure of damages under these conditions and circumstances would be the difference in the contract price and the amount for which Brooks was compelled to dispose of the horses, after using due diligence to get the highest price for which they could be sold under the circumstances. Shearman & Redfield, Neg. 755; U. S. Tel. Co. v. Wenger, 55 Pa. 262, 93 Am. Dec. 751; Wes. Union Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577, 31 L. Ed. 479; Thompson v. Wes. Union Tel. Co., 64 Wis. 531, 25 N. W. 789, 54 Am. Rep. 644; Squire v. Wes. Union Tel. Co., 98 Mass. 232, 93 Am. Dec. 157; Thompson, Law of

Brooks & Son v. Western Union Tel. Co.

Electricity, 335; Sedgwick on Damages, 880, 881; Manville v. Tel. Co., 37 Iowa 214, 18 Am. Rep. 8; Wes. Union Tel. Co. v. Dubois, 128 Ill. 248, 21 N. E. 4, 15 Am. St. Rep. 109.

This case must, however, be reversed and sent back 5 for a new trial. It was not shown that the price for which the horses were sold was the highest price that respondents, with reasonable diligence, could have obtained under the circumstances; and there is no evidence in the record which even tends to show that there was or appeared to be any necessity for disposing of the horses before Searcy, the party to whom they were bargained, arrived. It will thus be observed that some of the elements necessary to entitle respondents to recover more than nominal damages are lacking, as the record now stands. Under these circumstances, the instructions asked by appellant should have been given, and it was error for the court to refuse.

Appellant has set up in its answer, as a defense, 6 that the messages were unrepeated, and therefore,

under the printed rules referred to, it cannot be held liable for more than nominal damages. Neither of the parties have discussed this feature of the case in their briefs, nor did they refer to it in their oral arguments. However, as the case must be reversed and a new trial ordered, we deem it advisable to dispose of this question at the present time. We do not question the right of a company to adopt such reasonable rules as may be necessary to insure correctness in the transmission of messages over its lines, but in a case such as the one under consideration, where the messages are negligently laid aside and no attempt is made to perform the service for which the company has been paid, no rule or regulation of the company will exempt it from liability for such negligence, as public policy forbids contracts by telegraph companies of this character. Wertz v. Tel. Co., supra.

The case is reversed, with directions to the trial

Burt v. Utah Light & Power Co.

court to grant a new trial; the costs of the appeal to be taxed against respondents.

BASKIN, C. J., and BARTCH, J., concur.

AGNES H. BURT, Respondent, v. THE UTAH LIGHT & POWER COMPANY, a Corporation, Appellant.

No. 1394. (72 Pac. 497.)

1. Highways: Injuries: Allowing Water to Overflow and Form Ice: Appeal: Questions of Law: Evidence. Under Constitution, article 8, section 9, declaring that in cases at

law the appeal to the Supreme Court shall be on questions of law alone, the Supreme Court on appeal can not examine the evidence in an action at law to determine on which side it preponderates, where there is competent evidence to sustain the verdict.1

2. Same: Excessive Damages.

The court can not review the evidence to determine whether the damages are excessive.1

3. Same: Assignments of Error:

Appeal: Exceptions.

When Considered on

Assignments of error in the refusal of instructions and in the giving of others will not be considered on appeal where the record fails to show that exceptions were taken.

4. Same: Evidence: Prior Conditions of Highway: Admissible to Show Notice.

In an action for causing the death of plaintiff's son, and injury to her property, by reason of a defective highway caused by water escaping from defendant's water-pipe line and flowing on the

1 Anderson v. Min. Co., 15 Utah 22; 49 Pac. 126; Nelson v. So Pac. Co., 15 Utah 328; 49 Pac. 644; Mangum v. Bullion, etc.. Min. Co., 15 Utah 534; 50 Pac. 834; Whittaker v. Ferguson, 16 Utah 240; 51 Pac. 980; Murray v. Salt Lake City R. Co., 16 Utah 356; 52 Pac. 596; Wild v. Union Pac. R. Co., 23 Utah 265; 63 Pac. 886; Kennedy v. Railroad Co., 18 Utah 325; 54 Pac. 988; Croco v. Railroad Co., 18 Utah 311; 54 Pac. 985; 44 L. R. A. 285; Braegger v. Oregon Short Line R. Co., 24 Utah 391; 68 Pac. 140.

Burt v. Utah Light & Power Co.

highway, and forming ice, evidence as to the condition of the highway at the place of the accident a week or ten days prior thereto was aumissible, as showing time and opportunity to defendant to discover and remedy the defect.

5. Same: Evidence: Condition of Highway on Day After Accident.

The admission of evidence as to the condition of the road in question on the day after the accident was not reversible error where there was evidence that the conditions were the same on the day of the accident as the day after.

Evidence of defendant's effort after discovering the break in the pipe to check it, together with the difficulties of the original construction and the skill required therefor, was inadmissible. 7. Same: Evidence: Condition of Highway at Other Places: Exclusion not Error.

The exclusion of evidence as to the condition of the highway before and after the accident at other places than in the vicinity of the accident was not prejudicial to the defendant.

8. Same: Evidence: Agreement With County Commissioners: Exclusion not Error.

The exclusion of evidence of the arrangement made between defendant and the county commissioners having control of the highway as to the care of the highway was proper, the commissioners having no right to authorize the existence of a nuisance thereon.

(Decided May 20, 1903.)

Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge.

Action to recover damages for the death of plaintiff's son, alleged to have been occasioned by the negligence of the defendant company and also on an assigned cause of action for injury at the same time to a span of horses, harness, sled, hayrack and hay. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Le Grand Young, Esq., for appellant.