Free v. W. Union Tel. Co.
| Decision Date | 09 January 1907 |
| Citation | 110 N.W. 143,135 Iowa 69 |
| Parties | FREE v. WESTERN UNION TELEGRAPH CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Carroll County; Z. A. Church, Judge.
On November 6, 1902, plaintiff received a telegram announcing his mother's death. Upon inquiry at defendant's office, he ascertained that another had been received three days previous in words following: The signer was plaintiff's sister, and the telegram was not delivered until November 6th. This action was begun February 27, 1903, it being alleged that the telegram was properly addressed to plaintiff when handed to defendant's agent, and that the mistake and delay was because of its negligence; that defendant maintained offices for the transaction of its business at Huntington, Ind., and at Manning, Iowa, and undertook to deliver messages generally; that plaintiff had lived at Manning 15 years and was well known; that plaintiff did not ascertain, though he diligently inquired, until January 16, 1903, that the message as delivered at Huntington, Ind., was correctly addressed to him; and that on February 16, 1903, he filed with defendant his claim for damages. The defendant answered March 30, 1903, admitting the nature of its business and that offices were maintained as alleged; that the message of November 6th was delivered as stated, and that on the same day the message of November 3d, save that it was addressed to “Freeman,” instead of “Free,” was handed to plaintiff; that notice was served on the day stated; and otherwise put plaintiff upon his proof. The cause was then continued from term to term until January 4, 1904, when plaintiff amended his petition by annexing five interrogatories. The cause was then continued, and by agreement the interrogatories ordered to be answered by February 10, 1904. After several more continuances, the cause was noticed for trial at the March, 1905, term of court. The defendant then moved to strike the interrogatories from the files, on the grounds that they were not attached to the petition or amendment thereto and were filed a year after the issues had been made up, that no affidavit was attached thereto, that the first three merely called for certain documents, that the last two called for facts admitted by the answer, and that the interrogatories were filed for delay. This motion was overruled, and plaintiff then moved that the claim or cause of action be sustained and judgment entered in his favor, or, in the alternative, that the pleadings of defendant be stricken from the files and default against it be entered. This motion was sustained, the pleadings of defendant stricken from the files, and default entered as prayed. After the introduction of evidence, defendant filed a motion in arrest of judgment on the ground that the petition showed affirmatively that no claim for damages was served on defendant within 60 days from the time the cause of action accrued. This motion was overruled, and judgment entered for $1,000. A motion for new trial, also, was overruled. The defendant appeals. Reversed.Wright & Call, for appellant.
Salinger & Korts, for appellee.
Questions of practice only are presented on this appeal. Some time after the issues had been made up, plaintiff, by way of amendment adding nothing to the petition, attached five interrogatories thereto, to be answered by the defendant. By consent an order was entered that these be answered by February 10, 1904. Probably the attorneys having general charge of defendant's litigation in that section were not advised of this order, or that the interrogatories had been filed. But these were a part of the record in the case, and, through local counsel representing it, the company was charged with notice of precisely what had been done. Exceptions to the interrogatories or to so attaching them to the petition were not filed until more than a year after the entry of the order. By assenting to such order, defendant necessarily waived the right to interpose objections to the regularity and propriety of propounding them. Section 3604 of the Code provides that “either party may annex to his petition, answer or reply written interrogatories to any one or more of the adverse parties, concerning any of the material facts in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering.” This does not necessarily exact the annexing of the interrogatories at the time the petition or answer is filed, though that is the usual, and probably the better, practice. The purpose to be subserved is the procurement for use on the trial of evidence peculiarly within the control of the adverse party, and whenever it shall appear reasonably probable that by annexing interrogatories to the petition or answer and requiring answers will facilitate the trial or simplify or dispose of some of the issues, the mere fact that these were not attached to an original pleading when filed ought not to prevent them from being annexed thereto subsequently. See Blair v. Railway, 109 Iowa, 369, 387, 80 N. W. 673. Of course, if this will result in a continuance, leave to file may well be denied, or, if filed, the interrogatories may be stricken on motion. Theis v. Railway, 107 Iowa, 522, 78 N. W. 199. All this is incident to preparation for trial and is peculiarly within the discretion of the trial court. After consenting to an order requiring that the interrogatories be answered, however, there is no room for complaint concerning the time when, or the manner in which, they were filed.
Nor was there any error in refusing to consider the exceptions to the interrogatories themselves. Section 3606 contemplates that these shall be passed on before the entry of the order requiring answers. This plainly appears from its language: “The interrogatories shall be answered at the same time the pleading to which they are annexed is answered or replied to, unless they are excepted to by the adverse party; in which event the court shall determine as to the propriety of the interrogatories propounded, and which of them shall be answered, and within what time such answer shall be made.” Circumstances may arise which will justify setting aside the order and hearing exceptions filed subsequently; but no showing of the kind was made in this case, and there was no abuse of discretion in declining to hear exceptions to the questions asked.
2. On the 14th of March, 1895, more than a year after the interrogatories had been filed, plaintiff moved (1) that all his claim or cause of action be deemed sustained, and that judgment be given accordingly, and (2) in the alternative that all pleadings filed by defendant be striken, and default entered against it. This was supported by an affidavit of plaintiff, setting out the interrogatories, reciting the order of the court and the defendant's failure to answer them, and swearing “that the subject of the interrogatories is in the personal knowledge of defendant, and its answer thereto, if truly made from said knowledge, will sustain the claim and cause of action of plaintiff.” In response to this the defendant filed what is designated as reasons for not answering the interrogatories, disclaiming any intentional neglect or disregard of the court's order, and asserting that it was on account of there being no written application for the order and its attention not having been called thereto, and it asked that the particular part of plaintiff's contention which would be sustained by answer to the interrogatories be stated by plaintiff, and, farther, that defendant's attorneys be permitted to file answers thereto. This was supported by an affidavit of J. W. Hallam, attorney for defendants, reciting that his home was in Sioux City, where Wright & Call, the attorneys having general charge of defendant's litigation, resided; that he first learned that interrogatories had been filed and an order entered that they be answered on that day, and had learned by telephone that the other attorneys did not know thereof. He was cross-examined, and it appeared that he had been called into the case but a few days previously. Thereupon plaintiff showed that Lee & Robb had also appeared for defendant, and that the order was entered by agreement with them. On the day following the defendant filed an amendment to its answer, specifically admitting: That during the month of November, 1902, it was operating a line and engaged in the transmission of telegraph messages between Huntington, Ind., and Manning, Iowa. That on November 3, 1903, the following message was delivered to it for transmission, with fee therefor, by the signer: Also that another message announcing the death of plaintiff's mother was transmitted to him on the 6th of the same month, during which no other telegrams were received by it to be forwarded to plaintiff. The orginal answer had admitted that the telegram such as set out, addressed to Martin H. Freeman, had been delivered...
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