McMillan v. Western Union Telegraph Co. , 60 Fla. 131 ( 1910 )

Cockrell, J.,

(after stating the facts.)—The wording of the message “We want some brick, when are you going to ship” addressed to a Brick Company clearly put the telegraph company on notice that a matter of real business concern to the addressee was involved, and that negligence in its transmission would probably result in considerable pecuniary loss. This being so, the chief question is do the allegations stricken from the declaration destroy this potential right to substantial damages ?

The fact that the sender of the message could put an end to the contract at any time might well prevent a cause of action ex contractu against it, but. it does not of necessity destroy this action in tort against the Telegraph Company. This would seem to be foreshadowed by the court in Chipley v. Atkinson, 23 Fla., 206, 1 South. Rep. 934, in which we held that the inability of an employee to recover from his employer for a discharge from service did not prevent recovery against a third party who maliciously caused the dismissal.

There are cases such as Savannah, F. & W. R. Co. v. Willett, 43 Fla. 311, 31 South. Rep. 246, where it was held that a servant could not recover upon a contract of employment of indefinite duration, terminable at the will of the master, and also cases holding no recovery can be had for lost prospects of employment or other contracts, uncertain as to duration, because terminable at the whim or will of the other party.

There would seem, however, to be a basis for distinction between contracts not yet entered into and those already made where the only element of uncertainty as to time or volume of business is the ability of the losing party to please. To hold otherwise and to confine the addressee of a telegram to cases where an ironclad contract exists would be to deny him redress altogether. For if the other party to the contract be solvent, he has there full redress, and if he be not solvent, there has been no loss.

The declaration states positively that the building-company would not have discontinued the purchasing had it not been delayed and subject to damage by reason of the negligence in the delivery of the message, putting that fact in issue.

There would seem no special difficulty in admeasuring the damages in cases of this character and this can be regulated by proper charges.

The judgment is reversed.

Shackleford, and Parkhill, J. J., concur; Whitfield, C. J., and Hocker, J., dissent; Taylor, J., absent on acount of illness.

A re-hearing having been granted and the cause again fully considered, it is ordered and adjudged that the judgment heretofore entered stand as the judgment of the court.

All concur except Whitfield, C. J., dissenting.