(concurring.)
In the case of Western Union Telegraph Company v. Milton, 53 Fla. 484, 43 South. Rep. 495, this court-reaffirmed the rule that if a declaration entitled the plaintiff to recover even nominal damages a demurrer thereto will not lie, even though it claims other or greater damages than the case made may legally entitle the plaintiff to recover. Such a question is properly raised by objections to testimony at the trial, by instructions to the jury, or by requiring the declaration to be reformed.
The question of the sufficiency of the declaration to entitle the plaintiffs to recover other than nominal damages was, I think, properly raised by objections to some of the testimony offered and which are embraced in the assignments of error.
This court has repeatedly held that a declaration in an action at law should allege distinctly every fact that is essential to the plaintiffs’ right of action. Milligan v. *493Keyser, 52 Fla. 331, 42 South. Rep. 367; Royal Phosphate Co. v. VanNess, 53 Fla. 135, 43 South. Rep. 917.
In the instant case the telegram sent by Eastman, the master of the vessel from Cardenas, 'to Mierritt, at Pensacola, Florida, is as follows: “Offer 650 Tampa Nipe Bay. Answer quick.” The answer was “close;” and it is alleged that this was incorrectly sent “closed.” It seems to me that these words unexplained, are unintelligible to the ordinary reader, and do not convey to the mind any notion whatever that Eastman was the master of the ship “Doris,” and that he had been offered $6.50 per thousand feet for carrying' lumber from Tampa to Nipe Bay, or that they related to-a business transaction of much importance, and that a loss would probably result unless they wfere properly and correctly transmitted. There is no allegation in the declaration that the agent of the defendant knew its import or that he was advised of circumstances which would put him on notice that the message involved matters where considerable values were involved. In the case of Western Union Tel. Co. v. Milton, supra, the declaration sets out the telegram from John Milton to Geo. H. McFadden & Brothers, Agency, and alleges that “Geo. H. McFadden & Bros. Agency was engaged in the business of purchasing and selling cotton on and before said date (message' and the said words one hundred and seventy-five meant 175 bales of cotton which plaintiff had that day purchased for the account of the said Geo. H. McFadden & Bros. Agency, and that Geo. H. McFadden & Bros. Agency was engaged in dealing in cotton, and that plaintiff had been engaged in shipping cotton to and buying cotton for said agency was zvell known to the said defendant. In the body of the opinion, p. 500 it is said: “It is further alleged that defendant well knew that George H. McFadden & Brothers Agency was engaged in dealing in cotton, and thqt the plaintiff had beer engaged in shipping cotton to and buying cotton for said *494agency.” This shows how the court understood the declaration in that case. See also p. 505.
In the case of Western Union Tel. Co. v. Wilson, 32 Fla. 527, 14 South. Rep. 1, this court held: “The liability of a telegraph company for failure to transmit and deliver a message written in unexplained cipher, or in language unintelligible except to those having a key to its hidden meaning, is for nominal damages, or at mostfor the sum paid as the price for its transmission and delivery.” In that case this court held the rule in Hadley v. Baxendale, 9 Exch. 341, applicable to suits on the contracts of telegraph companies for the transmission of messages overruling the case of Western Union Tel. Co. v. Hyer Bros., 22 Fla. 637. The court, referring to the decided cases, says the great weight of authority favors this view. Since the case of Western Union Tel. Co. v. Wilson was decided, the Supreme Court of the United States in Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. Rep. 1098. has adopted the same rule. See, also, Hill v. Western Union Tel. Co., 42 S. C. 367, 20 S. E. Rep. 135; S. C. 46 Am. St. Rep. 734, and note. This doctrine is recognized in Western Union Tel. C. v. Milton, supra; on page 501 of the opinion where it is said: “In an action in tort against a telegraph company for breach of a public duty in negligently transmitting an incorrect copy of a message delivered to it for transmission, the damages that can be recovered are for the loss or injury sustained by thfe plaintiff as a proximate consequence of the defendant’s negligent act, which consequence the parties contemplated, or should have contemplated, as probably to follow from a breach of the duty.”
In the case of Western Union Tel. Co. v. McKinney. 2 Tex. App. Civil Cases, § 644, the message was “Twenty lumps, five looms, five buffs, five bucks.” This message was understood by the sender to mean, and would *495have been understood by the person to whom it was addressed to mean, that the latter should forward to the former certain linen goods, which line of goods the sender was packing. It is said in the opinion that the message does not disclose its meaning except to the person to whom it was directed, and was in effect a cipher message, and did not upon its face notify the company that it was of pecuniary value or importance. The court then refers to the.rule in Hadley v. Baxendale as adopted in that state and as applicable to the case. The court then says: “It is, therefore the law of this state * * * that in the case of a cipher telegram the sender can only recover for a failure to send or deliver, nominal damages, unless he alleges and proves that the company, at the time of receiving such telegram for transmission had knowledge that it was of value and importance.
In the case of Capers v. Western Union Tel. Co., 71 S. C. 29, 50 S. E. Rep. 537, it is held that in order to recover damages from a telegraph company for delay in delivery of a telegram it is essential where a recovery is -based on its special nature, that knowledge of its special importance should appear from the language of the telegram, or that it be alleged that the defendant was otherwise informed of its special importance. In this case the telegram was in these' words: “Beaufort, S. C. 2-29, 1904. To C. W. Butler. No letter received. Send to Yemassee conductor in morning. W. E. Capers.” See, also, 21 Ency. Pl. & Pr., 516.
Considering the unintelligible character of the words used in the telegrams in the instant case, I think that in order for the plaintiffs to be entitled to recover other than the cost of sending the telegrams or nominal damages, the declaration should have alleged that the defendant’s operator was informed of the meaning of the messages or that they related to a matter of business of importance, and that this should have been proven. In *496so holding I am in line with the rule of this court which we have referred to as established in the cases of Milligan v. Keyser and Royal Phosphate Co. v. VanNess, supra, in which it is held that in an action at law a declaration should allege distinctly every fact that is essentail to the plaintiff’s right of action. In other respetes, I concur in the opinion of Mr. Justice Parkhill.