#### THOMAS J. NEWSOME v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 6 October, 1910.)

1. Telegraphs — Contract—Notice—Damages Speculative.

A telegraph company, as a public agency, is compelled to accept telegrams for transmission and delivery with the charges for such service fixed by the Corporation Commission, and it is not held to contract with reference .to all special damages claimed because of information given its agent by the sender, as to the purpose and effect of the message, and remote or speculative damages are not recoverable.

*1542. Telegraphs — Damages Speculative.

Only such damages are recoverable as flow directly and naturally from the negligence of a telegraph company in transmitting a telegram, and they must be certain in their nature and in respect to the cause from which they proceed.

3. Same — Evidence—Nominal Damages.

In an action for damages against a telegraph company alleged to have been caused by the change of name of the sender of the message in transmission, the message reading, “Send four gallons corn, Mintz Siding, Bush, Baft hands,” upon the ground that the error prevented the sender from receiving four gallons of corn whiskey which he had contracted to furnish his raft hands to raft rosin and timber to Wilmington, and that in consequence the hands would not go into the water to raft the stuff, causing plaintiff to lose advantage of the freshet to his damage, and that these facts were communicated to defendant’s agent at the time the message was sent. Held, Damages too speculative and remote, and recovery, except nominal damages, denied.

Appeal from Goolee, J., at tbe May Term, 1910, of SakpsoN.

Tbe facts are sufficiently stated in tbe opinion of tbe court.

These issues were submitted:

1. Was tbe defendant guilty of negligence in tbe transmission of tbe message as delivered to it by tbe plaintiff ? Ans. Yes.

2. What damage, if any, bas plaintiff sustained by reason of tbe failure of tbe defendant to transmit tbe message as written and delivered to tbe defendant ? Ans. Five hundred and twenty-four dollars and ten cents ($524.10).

Erom a judgment for plaintiff defendant appealed.

J ohn D. Kerr and Geo. E. Butler for plaintiff.

Robert G. Strong and A. S. Barnard for defendant.

BROWN, J.

Tbe facts of this ease are stated fully in 137 N. C., and 144 N. C., 178. Tbe alleged negligence consists in transmitting a telegram to one Royal, Benson, N. C., ordering four gallons corn whiskey to be sent by express to Mintz Siding in Sampson County, N. C. Tbe signature was transcribed on tbe delivered telegram as T. J. Sessons instead of T. J. Newsome. Tbe plaintiff alleges that be ordered tbe whiskey by agreement with bis raft bands who were preparing to construct rafts and *155take bis timber and rosin to Wilmington during a fresbet in February, 1902, and tbat tbey refused to go into tbe water without it; in consequence of wbicb be lost tbe benefit of tbe fresbet and was greatly endamaged.

Tbe defendant requested an instruction tbat in no view of tbe evidence can plaintiff recover more tban nominal damages, wbicb was refused.

Tbe courts will be careful not to apply to a contract of tbis cbaracter a rule of damage wbicb will impose upon tbe defendant an unreasonable and speculative liability, wbicb an individual may avoid by declining to enter into tbe contract.

Tbe fact tbat tbe plaintiff informed tbe defendant’s operator tbat be needed tbe whiskey in order to get bis rafting done will not allow us to bold tbe defendant to damages wbicb from tbe very nature of tbe case must be purely speculative and remote. It should be borne in mind tbat tbe defendant, being a public agency, was compelled to accept tbe telegram and to agree with, tbe plaintiff, at tbe price fixed by tbe North Carolina Corporation Commission, to transmit it, under such circumstances it cannot be said tbat tbe defendant contracted with reference to tbe damages claimed by tbe plaintiff simply because its agent was informed of tbe purpose for wbicb tbe plaintiff wanted tbe whiskey. While we apply tbe rule of Hadley v. Baxendale to tbis kind of a contract, yet tbat rule will not justify tbe imposition of remote and speculative damages upon a public service corporation.

In Tanning Co. v. Telegraph Co., 143 N. C., 376, cited and approved in Mfg. Co. v. Telegraph Co., 152 N. C., 157, tbis Court said: “Damages are measured in matters of contract, not only by tbe well-known rule lain down in Hadley v. Baxendale, 9 Exch, 341, but tbey must not be tbe remote, but tbe proximate consequence of a breach of contract, and must not be speculative or contingent.” See also Byrd v. Express Co., 139 N. C., 273. It is an elementary principle tbat all damages must flow directly and naturally, and tbat tbey must be certain both in their nature and in respect to tbe cause from wbicb tbey proceed. Shearman and Redfield on Neg., secs. 25, 26.

*156Damages which are uncertain and speculative, or which are not the natural and probable result of the breach, are too remote to be recoverable. 2 Joyce, sec. 1284.

It is universally held that damages are not to be based upon mere conjectural probability of future loss or gain. 8 Am. & Eng., 610, and cases cited. Something more than a qiossible result must appear.

The fact that the whiskey was not sent may have caused the hands not to go into the water, but it is a far cry between constructing the raft at Thomas and marketing the product at 'Wilmington. The whiskey may have arrived and still the raft remain uneonstructed. The raft may have been constructed and loaded and still never have reached Wilmington.

It requires quite a stretch of the imagination to conceive that had the four gallons of corn whiskey arrived at Thomas, the raft would have been properly constructed, loaded and safely conducted over a heavy freshet to Wilmington and the merchandise duly and profitably marketed. Whiskey is very potential at times, but it cannot be relied upon to produce such beneficent results as is claimed for it in this case.

It is a singular fact in the county where the four gallons of corn whiskey were expected to produce such unusual results, its use was decried and its sale prohibited by law. It was contraband, outlawed, and dealing in it made a crime.

We are of opinion that the plaintiff is entitled to recover nominal damages only. It is so ordered.

Error.