Duncan v. W. Union Tel. Co.

• Citation: 58 N.W. 75,87 Wis. 173
• Parties: DUNCAN v. WESTERN UNION TEL. CO.
• Decision Date: 23 February 1894
• Court: United States State Supreme Court of Wisconsin

87 Wis. 173

58 N.W. 75

DUNCAN

v.WESTERN UNION TEL. CO.

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Taylor county; J. K. Parish, Judge.

Action by John Duncan against the Western Union Telegraph Company for damages caused by the negligent transmission of a telegram. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover damages, alleged to have been sustained by the plaintiff by the death of his horse, in consequence of the negligence of the defendant company in transmitting a message for the plaintiff from Westboro, Wis., to Foster Bros., at Eau Claire, Wis. The plaintiff's horse was sick, December 4, 1889, at Westboro, with congestion of the lungs, and, desiring the services of a veterinarian, he delivered to the defendant's agent at that place a message to be transmitted, as follows: “To Foster Bros., Prop'rs Eau Claire House, Eau Claire, Wis: Please send a good horse doctor on first train. John Duncan.” As transmitted and delivered, the word “doctor” was omitted; and, on account of the incorrect transmission of the message, the plaintiff could not get a competent person to treat and attend to his horse within the time necessary to save him; and, for want thereof, said horse died December 6, 1889,--to the plaintiff's damage, etc. The defendant admitted the error in the transmission of the message, but put in issue the other material allegations of the complaint. The evidence was to the effect that a veterinary surgeon from Eau Claire could have been secured, so as to reach Westboro early in the morning of the 5th of December, if the message had been correctly transmitted. In the afternoon of the 5th the services of a Dr. Wicker were secured, but the horse died about 1 o'clock on the morning of the 6th. Dr. Wicker testified to visiting the horse; that it had pneumonia; that he never studied medicine or graduated from any college, but practiced when called on, but not continuously. He was allowed to testify that, at the time he saw the horse, he told the plaintiff he could not save him; that the disease had gone too far; that the disease is not necessarily fatal in horses, but a delay of 10 or 12 hours makes a great deal of difference. He was asked: “In usual cases in horses afflicted with this disease, if medical aid arrives within fifteen or sixteen hours after the horse is taken sick, do you consider that in time?” He answered: “It will all be owing to the severity of the attack. I have had cases that ran three days without medical aid, that recovered.” That it was a very hard question to answer, whether, from the symptoms of the horse as he saw them, if the proper treatment had been administered at 4 o'clock in the morning, the horse could have been saved. He testified that, considering that the horse was taken sick a little before noon of the 4th of December, in an ordinary case of this disease, he would consider that proper treatment by 4 o'clock of the next morning would be in time. That he did not see anything extraordinary in this case from the usual run of cases he had treated. That he would not swear that the horse could have been saved, and did not think any one would. “That is not what I wished to be...