Kenyon v. Western Union Tel. Co.

California Supreme Court Dec 21, 1893 No. No. 19320Published

Before: Haynes

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Holding. The court held that the plaintiff could not recover damages for the loss of an appointment as a deputy because the damages were speculative and uncertain, as the appointment was at the pleasure of the appointing officer and lacked a definite term. Furthermore, the court affirmed the judgment because the plaintiff was not entitled to a reversal for the failure to award nominal damages, as such damages would not carry costs or determine a permanent right.

Issues

Whether the damages claimed for the loss of an appointment as a deputy were too speculative and uncertain to be recoverable.
Whether a judgment should be reversed for the failure to award nominal damages when such damages would not carry costs or determine a permanent right.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the case at bar it is not necessary to consider whether the damages claimed were too remote, since it is clear they were speculative and uncertain.”

“An appointment as deputy does not imply a contract for his employment for any length of time, nor otherwise than at the pleasure of the officer making the appointment.”

“In this case nominal damages would not entitle the plaintiff to costs, and would therefore not justify a reversal, even if it be conceded that the judgment is erroneous.”

Synopsis

Negligence—Liability of Telegraph Company—Speculative Damages —Pleading.—A complaint in an action against a telegraph company alleging that through the gross neglect of the defendant in wrongfully addressing a telegram, causing a delay in its delivery, the plaintiff was prevented from receiving an appointment as deputy city assessor, at a specified monthly salary, which he would have received if the message had been promptly delivered, and that he had sustained damage to the amount of five months’ salary, for which judgment is prayed, is subject to a general demurrer upon the ground that the damages are too speculative and uncertain to be recovered.

Id.—Measure of Damages—Uncertainty.—Damages, or compensation, must be measured by the loss sustained, and where that loss cannot be ascertained, damages cannot be recovered.

Id.—Appointment of Deputy—Term During Pleasure of Officer.— A deputy is appointed to hold during the pleasure of the officer appointing him, and an appointment as deputy does not imply a contract for . his employment for any length of time, it being possible that he might receive the appointment and be discharged the same day, either for cause or without cause.

Id.—Nominal Damages—Maxim, De Minimis—Costs.—The fact that the plaintiff might be entitled to nominal damages for the negligence of the defendant does not make a judgment sustaining a general demurrer to the complaint erroneous, as nominal damages would not entitle the plaintiff to costs, and under the maxim, de minimis non curat lex, no question of permanent right exists between the parties, to be settled by a trial, and the demurrer is properly sustained.

Haynes, C. Appeal from a judgment in favor of defendant upon its demurrer to plaintiff’s complaint.

The complaint in substance alleges that on January 2, 1893, the plaintiff delivered to the defendant at San Diego, for transmission and delivery, the following message: “ Col. A. G. Gassen, 501 Geary Street, San Francisco. Rennie will appoint. You wire him, please. Urgent. A. S. Kenyon;” that through the gross negligence of the defendant the address as received at San Francisco read, “ Collag. Massen,” and that it was not delivered for ten days thereafter, though defendant informed plaintiff on January 3, 1893, that' it had been delivered. That said Rennie was then, and since, the city assessor of the city of San Diego, that Gassen was an alderman of San Diego, that he was fully advised and understood the contents and importance of the message, that plaintiff was an applicant for an appointment as deputy of said city assessor at a salary of seventy-five dollars per month, and that if said message had been promptly delivered plaintiff would have received the said appointment, and that he had sustained damage in the sum of three hundred and seventy-five dollars, for which sum he prayed judgment.

The demurrer is that the complaint does not state a cause of action.

The negligence of defendant, and that plaintiff would have been appointed as such deputy but for such negligence, are sufficiently averred. Respondent claims, however, that the damages alleged are too remote, and that is said by respondent to be the ground upon which the demurrer was sustained. In "his brief counsel for [457]respondent also insists that the character and importance of the message were not disclosed, and that hence it could not be inferred therefrom that the loss of the sender’s appointment to an office, or other employment, might result from a failure to deliver it.

Upon both these points the authorities are, or appear to be, conflicting; but upon both questions the facts involved in the cases are so various and diverse that a careful consideration of each is required before it can be certainly said that they are in point upon the one side or the other.

That there was a breach of its contract on the part of the defendant is not disputed, nor can it be contended that the plaintiff is not entitled to recover all damages he sustained from the defendant’s breach of contract, provided such damages are not too remote, and are capable of being ascertained with sufficient certainty.

Kenyon v. Western Union Tel. Co.

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