dissented.
I dissent from the judgment in this case, and will briefly state the reasons which seem to me to require a reversal of the judgment of the court below.
"When the dispatch in this case was delivered for transmis*193sion, at the office of the company in Norfolk, no explanation was made whatever. Its contents were purposely concealed hy the employment of a cipher, and to the company’s agents it was wholly unintelligible, except that the translation of the address was registered at the office and known to them. The dispatch was never transmitted; and in this action against the company to recover damages for its negligent failure to send it, the main question relates to the measure of damages.
Now, it is a familiar maxim in our jurisprudence, that “in law the immediate, not the remote, cause of any event is regarded.”
The maxim has an important application in connection with the measure of damages. And the general rule upon the subject, where’ the action is founded in contract, as laid down by the court of exchequer in Hadley v. Baxendale, 9 Exch. 341, and since recognized by the courts of England and this country, is as follows: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should he such as may fairly and reasonably he considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably he supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
This rule has uniformly been applied by the courts in telegraph cases, and the result of the decisions is, that where the import or importance of a telegraphic message is not shown, either by its own terms or hy explanation to the company’s agent, to whom the same is delivered for transmission, it cannot he assumed that the parties had in view any pecuniary loss as the natural or probable result of a failure to duly send and deliver such message, and in such case, in the event of a breach of the contract, the sender can recover nominal damages only, or the sum paid for sending the message. • It was so ruled in the *194case of Saunders et. al. v. Stuart, 1 L. R., Com. Pleas Div. 326.
In that case 'the defendant, whose business it was to send telegraphic dispatches to this country and other places, negligently omitted to send an unintelligible cipher message which had been entrusted to him by the plaintiffs for transmission to- New York. In an action to recover damages for the failure to send the message, a verdict was returned in favor of the plaintiffs for an amount which they would have earned if the message had been sent, as commissions upon an order to which it related. The verdict was set aside, and it was held that they were entitled to recover nominal damages only. In delivering the opinion of the court, Coleridge, O. J., said, that it was unnecessary to decide how the case would be if the message had been in plain and intelligible words. But as it was in terms which to the defendant was simple nonsense, no such damages as were awarded by the jury could be reasonably supposed to have been in the contemplation of both parties when the contract was made as the probable result of a breach of it; that it was plain that the defendant, at least, did not know, or have reason to know, what or whether any damages would result from a breach of it, and could not, therefore, be held liable for more than nominal damages.
In similar cases, where the failure to transmit or deliver a cipher or other unintelligible dispatch is the subject of controversy, the courts of this country have uniformly, without exception and without a dissenting voice, applied the same rule. No case to the contrary is cited by the majority, and not one can be found. See Mackay v. W. U. Tel. Co., 16 Nevada, 222; Candee v. W. U. Tel. Co., 34 Wisc. 471; Beaupre v. Tel. Co., 21 Minn. 155; Landsberger v. Tel. Co., 32 Barb. 530; U. S. Tel. Co. v. Gildersleve, 29 Maryland, 232; Behm v. W. U. Tel. Co., 8 Biss. 131; Dorgan v. W. U. Tel. Co., 1 Amer. L. T. Rep. 409 (N. S); Sedgwick on the Mea. of Dam. (7th ed.), 122, 218, 238, 239 and cases, cited.
*195The rule, therefore, is not only supported by authority, but is so obviously founded upon reason and justice that I am unwilling to depart from it in this case.
But it is held by the majority that a different rule is prescribed by statute in Virginia; and this view is based upon the provisions of section two, chapter 65, and section five, chapter 145 of the Code of 1873. I cannot concur in this construction of those statutes. To me it seems opposed to the manifest intention of the legislature, and must inevitably result in hardship and injustice to the telegraph companies doing business in this state.
The first statute (section two, chapter sixty-five of the Code,) is merely declaratory of the common law^with the additional provision prescribing a penalty of $100 for every default on the part of a telegraph company in the discharge of the duties imposed by the act. The duties thus imposed are no more than were previously imposed by the rules of the common law. From the first organization of telegraph companies, it has been held to be their duty at common law to transmit faithfully and promptly, and in the order in which they are received, all dispatches entrusted to tfiem for transmission, and for which the proper charges are paid; and for their negligent failure to do so, apart from any statute on the subject, they are held “liable to an action for damages by any party aggrieved.” This results from the nature of their business and the relations in which they stand towards the public.
It is plain, therefore, that the effect of the statute is as I have indicated, and nothing more.
The purpose of the last statute (section five, chapter 145 of the Code) is, I think, equally manifest. Its sole object is to exclude the idea, that where a specific penalty or forfeiture is prescribed for the violation of any statute, a person injured by such violation is thereby impliedly prohibited from maintaining an action to recover damages for such injury, unless a contrary intention is expressed by the legislature. It is in these words: “Any person injured by the violation of any statute may *196recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.”
Here, it will be observed, no measure of damages, or rule to be applied in ascertaining the damages sustained in such cases, is prescribed by the statute. The rules of the common law, applicable to such cases, are therefore left unchanged. It is a settled principle that a statute is not presumed to alter the common law further than the act expressly declares.
In Arthur v. Bokenham, 11 Mod. 150, Trevor, C. J., in delivering the opinion of the court said: “The general rule in the exposition of all acts of parliament is this, that in all doubtful matters, and where the expression is in general terms, they are to receive such construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; therefore, in all general matters, the law presumes the act did not intend to make any alteration, for if the parliament had had that design, they would have expressed it in the act.”
It seems to me, therefore, that the statute does not alter the common law rules which, in cases like this, have been applied by the courts of England and our sister states.
It is unnecessary to enquire whether telegraph companies are common carriers; that they cannot be so considered and treated, however, is shown by the overwhelming weight of authority. In a recent edition of a work of recognized authority, it is said, that while many of the earlier cases inclined to the doctrine that they were common carriers, and subject to the same liabilities, the whole current of decision is now the other way. Sedg. on the Measure of Damages (7th ed.) 122, note, and cases cited. See also 21 Wall. 269-10; Saunders et. al. v. Stuart, 1 L. R. Com. Pleas Div. 326.
By the decision in this case, such companies are held to a more *197onerous liability than is imposed upon carriers of goods by tbe rules of tbe common law. When goods are delivered to tbe latter to be carried, the parties are presumed to contract with reference to the ascertained or supposed value of the goods so delivered. But in this case a telegraph company is held liable for the full amount of damage occasioned by its failure to send an unintelligible cipher dispatch, of whose import and importance it was not informed and could know nothing.
Such a doctrine, it seems to me, is not only unsupported by authority, but is opposed to reason and justice; and I am unwilling that it shall go forth as the law of this state unaccompanied by my dissent.
Judgment aeeirmed.