Foreman v. W. Union Tel. Co.

• Decision Date: 10 June 1908
• Citation: 116 N.W. 724,141 Iowa 32
• Parties: FOREMAN v. WESTERN UNION TELEGRAPH CO.
• Court: Iowa Supreme Court

141 Iowa 32

116 N.W. 724

FOREMAN

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Iowa.

June 10, 1908.

Appeal from District Court, Buchanan County; Franklin C. Platt, Judge.

Action at law to recover damages for nondelivery of a telegram. The trial court directed a verdict for plaintiff in the sum of $1, and he, plaintiff, appeals. Reversed.Cook & Cook, for appellant.

Carr, Hewitt, Parker & Wright, Geo. H. Fearons, and E. E. Hasner, for appellee.

DEEMER, J.

The petition is in two counts. In the first plaintiff asks damages for pain and anguish resulting from the failure of defendant to deliver a telegram sent by plaintiff's son from Wausa, Neb., announcing the death of the son's wife; and, in the second, for pain and anguish suffered by the son resulting from the nondelivery of the message to plaintiff, the said claim having been assigned to plaintiff. It was alleged in each count that defendant, when it received the message, was informed that it related to the death of the son's wife. The message read as follows: “To James Foreman, Independence, Iowa. Sena died at 2:30 this p. m. W. J. Foreman. September 22nd, 1906”--and the charge upon the same was $1, which was paid by the son, W. J. Foreman. At the conclusion of plaintiff's testimony, the trial court directed a verdict for plaintiff in the sum of $1, the amount paid for sending the message. The motion was sustained on the theory that the failure to deliver the message was not the proximate cause of the pain and suffering; that the relationship of the parties being by affinity only was not such that pain and suffering would be presumed; that it did not appear from the message that it was desired that plaintiff should attend the funeral, and that the defendant had no notice that any such attendance was desired, or that any special relations existed between plaintiff and his daughter-in-law as that pain and suffering would follow from the nondelivery of the message. Neither count of the petition contains an allegation of any special relations of friendship or affection between plaintiff and his daughter-in-law; nor does it charge the defendant with notice or knowledge thereof.

It is contended for appellee that, as there was no blood relationship between the plaintiff and his daughter-in-law, no presumption of pain and suffering obtains, and that it was incumbent on plaintiff to show by allegation and proof that such relations, in fact, existed between them as that pain and suffering in fact arose out of the nondelivery of the message, and that defendant had knowledge thereof. As to the second count of the petition, it is contended that, as the son did not notify the telegraph company when he filed the message that he would suffer if his father were prevented from attending the funeral, no damages are recoverable beyond the nominal sum paid for the message. It is further argued that the testimony shows that the son's suffering, if any, was due to the failure, not only of the father to attend the funeral of his wife, but also to his sisters' absence from the funeral, and that the son did not distinguish the suffering sustained by reason of the failure of the father to attend from that of his anguish over the nonappearance of his sisters. The negligence of the defendant in failing to make delivery of the telegram is practically conceded, and our discussion will be confined to the propositions above stated.

That there may be recovery of substantial damages due to pain and suffering from the nondelivery of a death message is the rule of this court. See Mentzer v. Telegraph Co., 93 Iowa, 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294;Cowan v. Telegraph Co., 122 Iowa, 379, 98 N. W. 281, 64 L. R. A. 545, 101 Am. St. Rep. 268;Hurlburt v. Telegraph Co., 123 Iowa, 295, 98 N. W. 794. In each of these save the Cowan Case there was a blood relationship between the parties. In Cowan's Case the sender of the message was the wife of the deceased, and the message was to be delivered to her relatives. These cases also establish the rule that, when there is a close blood relationship, friendly, affectionate, and cordial relationships will be presumed, and that there need be no affirmative proof that they existed. The question we now have before us is: Will such relations be presumed in cases where the parties are not related by blood but by affinity only? Upon this proposition there is a sharp and decided conflict in the authorities. The action being for tort, our rule is “that the party at fault must respond for all the injurious results which flow therefrom by ordinary and natural sequence without the interposition of any other negligent act or overpowering force.” That one will suffer from failure to deliver a message relating to the death of a near relative is to be presumed, and damages therefrom follow as an ordinary and natural sequence, but where the relationship is by affinity, and no facts are either pleaded or proved showing any special friendship or affection, no presumption of pain and suffering should arise, for it is common knowledge that from such relationship alone no presumption arises which will justify an inference that for...