dissenting.
The law casts upon a telegraph company, because of the public service it is engaged in, the duty to promptly deliver to the addressee a telegram properly entrusted to the company for transmission, and a corresponding liability in damages for negligence in performing the duty. Western Union Tel. Co. v. Milton, 53 Fla., 484, 43 South. Rep. 495, 11 L. R. A. (N. S.) 560, 125 Am. St. Rep. 1077; *141I. O. T. Co. v. Saunders, infra; Jones on Tel. & Tel. Paragraph 478 et seq.; Western Union Tel. Co. v. Dubois, 128 Ill. 248, 21 N. E. Rep. 4, 2 Ann. Cas. 398.
In an action for damages the declaration by its allegations or by the fair inferences arising from such allegations should contain all the elements essential to the plaintiffs cause of action; and if from the allegations it appears that special damages claimed are not legally recoverable in the action, statements contained in the declaration relating solely to such special damages that are wholly irrelevant may be stricken on proper motion under the statute so as not to embarrass a fair trial of the action. Benedict Pineapple Company v. Atlantic Coast Line Ry. Co., 55 Fla., 514, 46 South. Rep. 732, 20 L. R. A. (N. S.) 92; Hildreth v. Western Union Tel. Co., 56 Fla,, 387, 47 South. Rep. 820; Williams v. Atlantic Coast Line Ry. Co., 56 Fla., 735, 48 South. Rep. 209; Western Union Tel. Co. v. Wells, 50 Fla. 474, 39 South. Rep. 838, 7 Am. & Eng. Anno. Cases 531; Milligan v. Keyser, 52 Fla. 331, 42 South. Rep. 367.
To warrant the recovery sought it should appear by the allegations of the declaration or from fair inferences from such allegations (1) that the plaintiff, the addressee of a telegram, is interested in, or will be benefited by, the prompt delivery of the telegram, or will be injured by a negligent delivery; (2) that the defendant was negligent in delivering the telegram; (3) that the plaintiff actually sustained substantial financial loss; (4) that the loss as alleged was such that from the telegram or other information imparted to the defendant it should reasonably have been regarded as naturally and ordinarily to result from the negligence, or such as may reasonably under the circumstances stated be supposed to have been contemplated at the time by the defendant as a probable result of the negligence; (5) that the loss as alleged would not have *142occurred but for the negligence of the defendant; (6) that the loss as alleged is not remote, contingent or conjectural, and is capable of reasonably certain ascertainment. Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 South. Rep. 495, 11 L. R. A. (N. S.) 560, 125 Am. St. Rep. 1077; Jones on Tel. & Tel. Chapter 478; Isham v. Dow’s Estate, 70 Vt. 588, 41 Atl. Rep. 585; Western Union Tel. Co. v. Merritt, 55 Fla., 462, 48 South. Rep. 1024; Williams v. Western Union Tel. Co., 136 N. C. 82, 48 S. E. Rep. 559, 1 Am. & Eng. Anno. Cas., 359 and notes; Harrison v. Western Union Tel. Co., 143 N. C. 147, 55 S. E. Rep. 435, 10 Am. & Eng. Anno Cas., 476 and notes; Ferrero v. Western Union Tel. Co., 9 App. Cas. (D. C.) 455, 35 L. R. A. 548; Western Union Tel Co. v. Wilson, 32 Fla. 527, 14 South. Rep. 1; Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 South. Rep. 556, 21 L. R. A. (N. S.) 1034; Benedict Pine Apple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 South. Rep. 732, 20 L. R. A. (N. S.) 92; Western Union Tel Co. v. True, 101, Texas, 236, 106 S. W. Rep. 315. Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 South. Rep. 148, 21 L. R. A. 810. Frazier v. Western Union Tel. Co., 45 Oregon 114, 78 Pac. Rep. 330, 2 Am. & Eng. Anno. Cas. 396 and notes; Western Union Tel. Co. v. Woodard, 84 Ark. 323, 105 S. W. Rep. 579, 13 Am. & Eng. Anno. Cas. 354; Western Union Tel. Co. v. Schriver 141 Fed. Rep. 538, 4 L. R. A. (N. S.) 678; 29 Cyc. 499. Hildreth v. Western Union Tel. Co., 56 Fla. 387, 47 South. Rep. 820; 21 Am. & Eng. Ency. Law (2nd ed.) 493 et seq.; 29 Cyc. 488 et seq.; Snyder v. Phil. Co., 54 W. Ya. 149, 46 S. E. Rep. 366, 1 Am. & Eng. Anno. Cas. 225 and notes; Young y. Western Union Tel. Co., 107 N. C. 370, 11 S. E. Rep. 1044.
If it appears from the declaration that the loss was the proximate result of an independent efficient cause intervening between the negligence and the loss and it does *143not reasonably appear that the loss would not have occurred but for the negligence .of the defendant; or if it appears from the declaration that the loss as alleged is contingent, remote or conjectural and not capable of reasonably certain proof; or, even though contributory negligence is in general a matter of defense, if it appears from the declaration that the loss was contributed to or caused by the plaintiffs fault, the special damages claimed cannot legally be recovered in this action. See Williams v. Atlantic Coast Line Ry. Co., supra.
The damages claimed in the portion of the declaration that was stricken do not naturally and necessarily result from the negligence charged, and to be recovered) should be specially alleged. Jacksonville Electric Co. v. Batchis, 54 Fla. 192, 44 South. Rep. 933. Therefore if the motion to strike was erroneously granted such error was not harmless to the plaintiff.
That the plaintiff had an interest in the telegram, that the defendant was negligent, and that the plaintiff sustained loss appear by the declaration.
Under the allegations of the declaration it appears that the refusal of the sender of the message to take the brick Avas the direct efficient cause of the loss to the plaintiff. This being so the defendant is not liable unless its negligence so contributed to the loss that without the negligence the loss Avould not have occurred. The defendant’s negligence did not put in operation a dangerous agency, or make it possible for a natural condition or ordinary circumstance to directly cause the loss as in such cases as Jacksonville, T. & K. W., Ry. Co. v. Peninsular Land Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661; Florida East Coast R. Co. v. Welch, 53 Fla. 145, 44 South. Rep. 250; Alabama Great Southern R. Co. v. Quarles & Couturie, 145 Ala. 436, 40 South. Rep. 120, 8 Am. & Eng. Anno. Cas. 308.; Green-Wheeler Shoe Co. v. Chicago R. I. *144& P. Ry. Co., 130 Iowa 123, 106 N. W. Rep. 498, 8 Am. & Eng. Anno. Cas. 45. See also Bibb Broom Corn Company v. Atchison, Topeka & Santa Fe R. Co., 94 Minn. 269, 102 N. W. Rep. 709, 3 Am. & Eng. Anno. Cas. 450, and notes; Illinois Central R. Co. v. Siler, 229 Ill. 390, 82 N. E. Rep. 362, 11 Am. & Eng. Anno. Cas. 368. Even in this class of cases the negligence of the defendant must by uninterrupted sequence contribute proximately to the loss. Norris v. Savannah, F. & W. Ry Co., 23 Fla. 182, 1 South. Rep. 475. Lightfoot v. St. Louis & S. F. R. Co., 126 Mo. App. 352, 104 S. W. Rep. 482; Fentiman v. Atchison, T. & S. F. Ry. Co., 44 Tex. Civ. App. 455, 98 S. W. Rep. 939. Nor did the defendant’s negligence contribute to the loss conjointly with another cause as in the cases of Moore v. Lanier, 52 Fla. 353, 42 South. Rep. 462. Janes v. City of Tampa, 52 Fla. 292, 42 South. Rep. 729; Illinois Central R. Co. v. Siler, 229 Ill. 390, 82 N. E. Rep. 362, 11 Am. & Eng. Anno. Cas. 368. This is not a case of malice or wilful action as in Chipley v. Atkinson, 23 Fla. 206, 1 South. Rep. 934, 11 Am. St. Rep. 367, Text 376; Western Union Tel. Co. v Wells, 50 Fla. 474, 39 South. Rep. 838, 2 L. R. A. (N. S.) 1072, 7 A. & E. Anno. Cas. 531; or of personal injury as in Jacksonville Electric Co. v. Batchis, 54 Fla. 192, 44 South. Rep. 933. Nor does the message in this case convey to the telegraph company information of its special importance as did the message and the attending circumstances in Western Union Tel. Co. v. Merritt, 55 Fla. 462, 46 South. Rep. 1024, 127 Am. St. Rep. 169. There is here no direct offer of special employment as in Fairley v. Western Union Tel. Co., 73 Miss., 6, 18 South. Rep. 796; W. U. Tel. Co. v. McLaurin, 70 Miss. 26, 13 South. Rep. 36.
The intervening act of refusing to take the brick was not a mere natural condition that should reasonably have been contemplated, as in Benedict Pineapple Co. v. Atlan*145tic Coast Line Ry. Co., supra; nor was such refusal to take the brick an irresponsible and natural circumstance succeeding a tort as in Lowery v. Manhattan Ry. Co., 99 N. Y. 158, 1 N. E. Rep. 608; Isham v. Dow’s Estate, 70 Vt. 588, 41 Atl. Rep. 585; Griggs v. Fleckenstein, 14 Minn. 81. The principle announced in the case of American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, 47 South. Rep. 942, that “where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss,” is not applicable here because the negligence of the defendant here did not enable the sender of the telegram to refuse to take the brick; but such refusal appears from the declaration to have been within the Hardware Company’s rights independent of the defendant, and the refusal required the independent and voluntary act of a human mind. See Vicars v. Wilcocks, 8 East 1; Walser v. Western Union Tel. Co., supra; Merrill v. Western Union Tel. Co., 78 Me. 97, 2 Atl. Rep. 847. See also Western Union Tel. Co. v. Schriver, 141 Fed. Rep. 538, 4 L. R. A. (N. S.) 678, and notes.
A telegraph company like every natural person and corporate entity should be required to properly perform all legal duties and to meet and satisfy all legal liabilities. Such a corporation is authorized to do business primarily for the public welfare and can act only through officers and employees. It is not held to a greater degree of responsibility than should be reasonably demanded in view of the circumstances under which its duties are performed and of the just requirements of the public welfare. A more onerous rule would probably invade constitutional rights and prove detrimental to the public welfare in high rates or inefficient service.
*146One who commits a trespass or other wrongful act is in general liable in damages for all the consequences directly resulting from the tort, whether foreseen by the wrong doer or not, if the wrongful act is not interrupted by the intervention of an independent procuring or efficient cause, without which intervening cause the injury or loss would not have ensued and the plaintiff is not at fault. But in actions for damages alleged to have been caused by the mere negligence of one engaged in performing a public service as to which the law may imply a contract or impose a duty, the damages for which recovery may be had are such as naturally and ordinarily arise out of or flow from the negligence, or such as may reasonably be supposed to have been contemplated at the time of the negligence as a probable result of it. Hall v. W. U. Tel. Co., 59 Fla. 275, 51 South. Rep. 819. If the party charged with negligence, by giving proper attention to the subject under the circumstances of the particular case, should reasonably have contemplated the injury or loss alleged as being likely to occur as a proximate result of the negligence, the law holds the negligent party liable in damages whether such injury or loss was actually contemplated or not.
The true rule applicable to cases of this character is that where it appears that the defendant is engaged in rendering a public service as to which there may be a duty implied by law in favor of the plaintiff, that the defendant was merely negligent in performing the duty due to the plaintiff, and that as a proximate result of such, negligence without any intervening independent efficient cause, the plaintiff actually sustained losses, that would not have occurred but for the defendant’s negligence, there may be a recovery if such losses from information conveyed to the telegraph company by the message or otherwise should under the circumstances reason*147ably have been contemplated at the time by the negligent party, and the losses as alleged are not dependent upon another’s will and are not speculative, remote, contingent or conjectural, and are capable of reasonably certain ascertainment. See Saunders v. Western Union Tel. Co., supra; Wilson v. Western Union Tel. Co. supra; Western Union Tel. Co. v. Milton, supra; Woodberry v. Tampa Water Works Co., supra; Wolff Shirt Co. v. Frankenthal, 96 Mo. App. 307, 70 S. W. Rep. 378; Williams v. Atlantic Coast Line Ry. Co., supra; Walser v. Western Union Tel. Co., supra; Jones on Tel. & Tel. Paragraph 526; Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 1, Sup. Ct. Rep.
Even if from the words of the message the telegraph company should reasonably have contemplated that negligence in the delivering the message would proximately and probably result in any loss to the persons to whom the message was addressed, the loss should be such as grows directly out of a contract with reference to the brick between the sender and the addressees, that might reasonably have been apparent from the language of the message, and not such as may arise out of a collateral contract between the sender and a third person, even though the addressees knew of the collateral contract and that it was an inducement to the agreement between the sender and the addressees, because even if the special damages alleged are capable of reasonably certain ascertainment, there is nothing in the message itself to impart to the telegraph company any information as to a collateral contract upon which the telegraph company should reasonably have contemplated that the special loss as alleged would probably result to the addressees if the message be not properly delivered. No knowledge of the defendant except that given by the message is alleged.
If the message did reasonably indicate to the telegraph *148company any urgent need for brick it did not make a definite offer for brick and it did not indicate to the telegraph company that the sender and addressees had an understanding that the brick were wanted for any special purpose or that the sender would incur demurrage liabilities or would terminate a contract for brick if there was further delay in delivering the brick.
Even if the negligence of the defendant was the procuring cause of the refusal of the sender of the message to take the brick, and was consequently a proximately contributing efficient cause of the loss, the special damages as alleged and stricken do not naturally and ordinarily follow the negligence alleged and, under the circumstances stated, could not reasonably be supposed to have been contemplated by the defendant at the time of the neg’igence, since the message imparted to the defendant no information as to the collateral contract for the special use of the brick, and no other knowledge thereof by the defendant is alleged.
It is alleged that under the contract the Hardware Company agreed to buy from the plaintiff “brick at the rate of four cars per week beginning June 1,” 1906, until notified to stop.” The immediate cause of the loss alleged was the refusal of the Hardware Company on June 6, 1906, to take the brick. This refusal was the exercise of a right not in any way dependent on the defendant or its negligence.
The defendant’s negligence in failing to promptly deliver the telegram may have exerted some influence in the decision of the Hardware Company, a third party, to refuse to take the brick, yet the negligence of the defendant was not necessarily the procuring cause of the refusal to take the brick, even though, it may have been an incentive, and advantage may have been taken of such negli*149gence to voluntarily refuse to take the brick, which refusal directly caused the loss.
Special damages should be predicated upon the direct or proximate consequence of the negligence alleged and not upon any occurrence, circumstance or act merely attending or succeeding the negligence, and requiring additional or independent agencies to cause the damage. See Whatley v. Murrill, 1 Strob. (S. C.) 389; Ins. Co. v. Boon, 95 U. S. 117, text 130.
Whether the refusal of the Hardware Company to take the brick was within its rights or not, it was a voluntary act of a responsible party wholly independent of the defendant. The refusal was the voluntary independent exercise of a legal right, and was not a mere condition or circumstance that should have been contemplated by the defendant as likely to occur. The refusal of the Hardware Company to take the brick and not the negligence of the defendant was the proximate cause of the special damages alleged, such refusal being an independent, efficient cause intervening between the negligence of the defendant and the loss of the plaintiff as alleged, and directly causing the loss, and it not appearing with reasonable certainty that but for the negligence the loss as alleged would not have occurred.
The negligence of the defendant did not directly cause the loss, it did not put into operation a controlling force or dangerous agency, it was not a procuring cause or a directly contributing or concurrent efficient cause of the loss, it did not make it possible for a natural condition or ordinary circumstance to directly cause the loss, it was not such negligence as without it the subsequent refusal of the Hardware Company to take the brick would not have caused the loss; but the negligence of the defendant merely preceded and may have influenced or prompted, but could not have put into operation or could not have *150controlled or directed, the independent voluntary refusal of the Hardware Company to take the brick, which refusal was the sole immediate efficient cause of the loss. Consequently it does not appear that the defendant’s negligence was the proximate cause of the loss, or that but for such negligence the loss would not have occurred. See Wilson v. W. U. Tel. Co., 124; Ga., 131, 52, S. E. Rep. 153.
Remote, speculative or contingent damages cannot in general be recovered, nor in general can recovery be had for such losses as may have been prevented if the injured party had exercised reasonable diligence. Consequential damages that may be recovered in cases of this character should be proximate results of the negligence charged that reasonably should have been contemplated and must be capable of ascertainment and computation with reasonable certainty. Jones on Tel. & Tel. Paragraphs 197, 320, 524, 526, 530, 563 et seq.; Williams v. Atlantic Coast Line Co., supra; Western Union Tel. Co. v. Milton, supra; Walser v. Western Union Tel. Co., 114 N. C. 440, 19 S. E. Rep. 366; Jones on Tel. & Tel. Paragraphs 320, 524, 526, 530, 547, 560, 563; 27 Am. & Eng. Ency. Law. (2nd ed.) 1060; Kagy v. Western Tel. Co., 37 Ind. App. 73, 76 N. E. Rep. 792, 117 Am. St. Rep. 278, and exhaustive note, see also Moses v. Autuono, 56 Fla. 499, 47 South. Rep. 925, 20 L. R. A. (N. S.) 350; Savannah, F. & W. R. Co. v. Willett, 43 Fla. 311, 31 South. Rep. 246; Sweet v. Western Union Tel. Co., 139 Mich. 322, 102 A. W. Rep. 850, 5 A. & E. Anno. Cas. 730.
Profits expected to be made are too remote and contingent to be recovered when the rights under the contract may be defeáted by another’s will. See Jones on Tel. & Tel. Paragraph 526.
The message itself indicated that the addressee had already delayed longer than the sender had anticipated under the contract, and, upon the allegations of the dec*151laration the gender could have at any time voluntarily and independent of the defendant terminated the contract with the addressee for that or any other reason or for no reason, thereby making the profits claimed to have been lost if not remote, conjectural or speculative, at least contingent upon the voluntary independent will of the sender of the telegram, and consequently not capable of reasonably certain proof. See Western Union Tel. Co. v. Barlow, 51 Fla., 351, 40 South. Rep. 491; Williams v. Atlantic Coast Line Ry. Co., 56 Fla., 735, 48 South. Rep. 209; Merrill v. Western Union Tel. Co., 78 Me. 97, 2 Atl. Rep. 847; Fererro v. Western Union Tel. Co., supra; Walser v. Western Union Tel. Co., 114 N. C. 440, 19 S. E. Rep. 366; Western Union Tel. Co. v. Lehman, 106 Md. 318, 67 Atl. Rep. 241.
In view of the apparent absolute right of the Hardware Company to arbitrarily refuse to take brick at any time, and of the plaintiff’s apparent delay in forwarding the first installment under the contract, as shown by the allegations of the declaration and the telegram itself, the allegation that but for the negligence of the defendant the Hardware Company would not have refused to take the brick, does not appear to be capable of reasonably certain proof.
There was no legal obligation to take the brick, and neither the interest nor the intention of the purchaser is a certain guide in determining the loss of contemplated profits. The telegram did not indicate a desire for or an intention to take any particular number of brick, and, it was not an offer that would have been binding if accepted.
The interest or intention of the purchaser to take the brick made essential in this case is contingent and conjectural, dependent upon the arbitrary or independent will of the purchaser, and should not be accepted as a reason*152ably certain essential factor determining liability for loss of contemplated profits.
If the special damages that were alleged and stricken were proximately caused by the negligence of the defendant and should have been contemplated as a natural and probable result of the negligence, it appears that such special damages, if not speculative, conjectural or remote, were contingent upon the exercise at any time of the arbitrary will of the sender of the telegram within its rights wholly independent of the defendant’s negligence, and consequently such damages are not capable of any degree of certain ascertainment, and cannot be recovered in this action.
As the defendant is not shown to be liable for the special damages alleged, the question does not arise as to whether in case of liability the allegations relative to the measure of damages would properly have been subject to a motion for compulsory amendment rather than to. a motion to strike. See Williams v. Atlantic Coast Line Ry. Co., supra.
The special damages as alleged were not recoverable in this action; and, as they were calculated to embarrass a fair trial of the action, no error was committed in striking from the declaration the allegations as to such special damages. See section 1433 General Statutes of 1906; Hildreth v. Western Union Tel. Co., supra.
The principal cases relied on by the plaintiff in error involve direct offers for special services or propositions relating to property of special value binding on the sender of the message where losses could) be ascertained with reasonable certainty, or are cases where the negligence was an efficient cause of the loss, which is not the case here. See also Barker v. Western Union Tel. Co., 134 Wis. 147, 114 N. W. Rep. 439, where a statute influenced the decision.
*153As no point is presented for determination except the propriety of striking the portions of the declaration relating to the special damages, and as the judgment is for merely nominal damages for the admitted breach of duty in not promptly delivering the message, no other questions need be discussed here.