W. L. SHARP, Appellant,
WESTERN UNION TELEGRAPH COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Messrs. McNabb & De Camp, for Appellant.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld and Mr. Francis R. Stark, for Appellee.
[39 Ariz. 351] ROSS, J.
This is an action by W. L. Sharp against the Western Union Telegraph Company for damages he claims to have sustained by reason of the latter's failure to transmit and deliver to him at Oklahoma City, Oklahoma, a sum of money deposited with it at Phoenix, Arizona, for such purpose.
Defendant pleaded to the complaint by way of general demurrer and general denial.
At the oncoming of the trial, and after a jury was impaneled, defendant admitted liability for nominal damages, objected to the introduction of any evidence, and moved for a directed verdict in favor of plaintiff for nominal damages, on the ground that under the pleadings plaintiff was entitled to such damages only. Defendant's motion was granted, and the jury was instructed to return a verdict for plaintiff for nominal damages in the sum of one dollar. This was done, whereupon judgment was duly entered upon such verdict.
Plaintiff has appealed, assigning as error the action of the court in granting defendant's motion. Whether plaintiff has been denied his rights or not depends upon the allegations of his complaint. Therein he alleges, in substance: That he was, on or about May 13, 1930, in Oklahoma City, Oklahoma, and, by unfortunate circumstances, without money; that he was on his way home to Phoenix, traveling in a Packard sedan, and to make the trip with his family was compelled to wire his friend J. T. WILLIAMS, of Phoenix, for money; that in response to his wire said Williams on May 14th did wire to him at defendant's main office in Oklahoma City "the sum of $35.00 less $1.32 charges for transmitting said money order"; that each day thereafter he called at defendant's office and inquired if money had been wired him by Williams, and that on each occasion he was falsely informed there had been no [39 Ariz. 352] money wired to him by anyone; that defendant on May 19th, notwithstanding plaintiff had been calling for said money each day, returned the same to said Williams "less the charges"; that he was a stranger in said Oklahoma City with his family; that his Packard sedan was worth $900, and that, in order to obtain means of transportation to his home, he was compelled to trade his said Packard sedan for an old car not worth $50 and $80 cash, and that, as a result of defendant's failure to deliver to him the money wired by Williams, he was damaged in the sum of $795, being the difference between the salvaging of the old car and the $80 received in trade and the value
of his Packard. His prayer was for the sum of $795 and costs. In effect, the judgment for nominal damages was one upon the pleadings, and should not have been directed if under any reasonable construction of the complaint plaintiff showed himself entitled to actual damages. Defendant's motion admitted the facts stated in the complaint to be true, and that plaintiff's rights had been violated.
That defendant failed to perform its obligation to plaintiff is too patent for argument. Its neglect was inexcusable. Defendant had accepted, in accordance with its standing invitation, money from plaintiff's friend, and agreed to transmit and deliver the same to plaintiff at Oklahoma City safely and as expeditiously as its facilities would permit, and in total disregard of its promise failed to give the money to plaintiff, although repeatedly asked to do so. Defendant should be made to pay plaintiff the damages proximately resulting from such carelessness and negligence. 26 R.C.L. 561, § 66.
The damage claimed in his complaint is the difference between the value of his Packard sedan and what he realized for it in trade, or $795. He alleges he was compelled to make this trade in [39 Ariz. 353] order to transport himself and family to his home in Phoenix.
The question is as to whether the damages suffered under such circumstances are proximately traceable to defendant's dereliction, and whether they were within the contemplation of ...