Hendershott v. W. Union Tel. Co.

• Decision Date: 22 October 1898
• Citation: 76 N.W. 828,106 Iowa 529
• Parties: HENDERSHOTT v. WESTERN UNION TEL. CO.
• Court: Iowa Supreme Court

106 Iowa 529

76 N.W. 828

HENDERSHOTT

v.WESTERN UNION TEL. CO.

Supreme Court of Iowa.

Oct. 22, 1898.

Appeal from district court, Wapello county; M. A. Roberts, Judge.

Action at law to recover damages for delay in transmitting and delivering a telegram sent to the plaintiff. Verdict and judgment for the plaintiff for $1,234.35. Defendant appeals. Reversed.Geo. H. Fearsons and McNett & Tisdale, for appellant.

W. W. Cory and Jacques & Jacques, for appellee.

GIVEN, J.

1. The following facts are undisputed, and a statement thereof will sufficiently show the issues: Plaintiff, for a long time a well-known resident and practicing attorney of Ottumwa, Iowa, was the owner of a valuable stallion and speed horse, called “Bravo,” which he had in the charge of one E. Daggett, for care and training, at the track and training stable at Hedrick, Iowa, about 12 miles distant from Ottumwa. On June 28, 1893, at about 7 a. m., Daggett discovered that the horse was ailing, and at 7:30 o'clock a. m. delivered to the defendant's agent at Hedrick for transmission, with the request that it be promptly forwarded, a dispatch, as follows: “6-28, 1893. To C. Hendershott, Ottumwa, Iowa: Bravo is sick; come and fetch Miller at once. [Signed] E. Daggett.” The message was received by defendant's agent at Ottumwa between 8 and 8:30 the same morning, and was delivered to the plaintiff between 1 and 2 o'clock that afternoon. There being then no railway train by which Hedrick could be sooner reached, the plaintiff and Dr. Miller, a skillful and competent veterinary surgeon, proceeded by train to Hedrick, where they arrived between 3 and 4:30 o'clock that evening, when Dr. Miller found that the horse had pneumonia, or lung fever, and proceeded to treat it for that disease. The horse continued sick until the seventh day thereafter, when it died. There is dispute as to whether the defendant was negligent in not sooner delivering the dispatch to the plaintiff, whether the delay was the proximate cause of the death of the horse, whether plaintiff was negligent in the care of the horse, and as to its value. The facts as to these disputed questions will be noticed further on.

2. Appellant moved for a verdict at the close of the plaintiff's evidence, and again at the close of all the evidence, upon the grounds that the evidence failed to make out a case for the plaintiff, for that the damages claimed are too remote, for that it fails to show that the death of the horse was the proximate result of any act or omission of defendant, and for that there is not sufficient proof of negligence on the part of defendant; also, that the evidence shows that plaintiff was guilty of contributory negligence. Appellant also included these grounds in its motion for new trial, and, these several motions being overruled, the rulings are assigned as error. The state of the evidence was not so materially changed, following the first motion, as to require a separate consideration of these rulings. They may be considered under the general inquiry as to the sufficiency of the evidence.

3. We first inquire as to the sufficiency of the evidence to sustain the charge of negligence in failing to deliver the dispatch. The jury returned 24 special findings, of which the following is the substance of those relating to the alleged negligence. These findings, we think, are warranted by the evidence. The jury found that the message was delivered at Hedrick for transmission at 7:30 o'clock a. m.; that it was received at Ottumwa at 8 o'clock, and delivered to the plaintiff at 1:30 p. m.; that the messenger went to plaintiff's office twice,--the first time at about 8:15 a. m.; that he left no notice of the message under the door; and that there was a negligent delay of five hours in delivering the message. They also found that the plaintiff's residence was within a radius of one mile from defendant's Ottumwa office. One mile was the radius of free delivery. The defendant's agent at Ottumwa who received the dispatch says he knew Dr. Miller, and implied from the message that some one was sick, and that a physician was wanted. While this message was not sent as an emergency message, there was surely reason to understand from its language that promptness should be exercised in its delivery. The messenger made several efforts to find Mr. Hendershott down town, but did not go to his residence, which the jury found was within the radius of free delivery. Plaintiff remained at his residence until after dinner that day, but, as his residence was within the limits of free delivery, the message should have been taken there,--especially so in view of what its words disclosed. There is a conflict in the evidence as to whether the residence was within a radius of one mile, but, if it was not, it was at most but a few feet beyond; and, in view of the character of the message, promptness and good faith required that it should have been taken to the residence, even though it was a few feet beyond the limits of free delivery. We think, however, the finding of the jury as to the distance is warranted. We are in no doubt that the plaintiff's evidence in chief and the entire evidence were such as to warrant the court in submitting the issue of negligence to the jury, and to warrant the jury in finding that the defendant was negligent in not sooner delivering the message to plaintiff.

4. Appellant contends that “the negligent delay, if any there was, in the delivery of the message, and the consequent failure of the veterinary surgeon to reach the horse as soon as he otherwise would, by the space of five hours, as found by the jury, was not the proximate cause of the death of the horse,” and that the law applied to the facts did not warrant the court in submitting to the jury the question whether the delay in the delivery of the message was the proximate cause of the death of the horse. To determine these contentions, we must first ascertain the rule as to the degree of evidence which plaintiff must present to entitle him to recover. The court instructed that, to recover, the plaintiff must establish that the defendant was negligent in not sooner delivering the message, that plaintiff was not guilty of negligence contributing to the death of the horse, and “that the death of the horse was directly and proximately caused by the delay in delivering the dispatch, or that but for such delay the horse would not, in all reasonable probability, have died.” The instructions throughout direct the jury that the burden was on the plaintiff to prove that, “in all reasonable probability,” the death of the horse was caused by reason of Dr. Miller's not reaching it as soon as he would had the message been delivered when it should have been, and that it did not rest upon the defendant to prove that the horse would have died even if Dr. Miller had reached it as much sooner as the delivery of the dispatch was delayed. In Kerr v. Waterworks Co., 95 Iowa, 514, 64 N. W. 598, this court quoted with approval from Gores v. Graff, 77 Wis. 174, 46 N. W. 48 (an action against a surgeon for negligence which caused the death of his patient), as follows: “There can be no recovery, unless it is reasonably probable that Olson [the patient] would have lived had Dr. Graff treated him properly, and the existence of such reasonable probability must be proved; that is, facts and circumstances must be proved sufficiently to bring conviction to a reasonable mind, without resorting to mere conjecture or uncertainty, and inconclusive inference or bare possibilities that the surgeon's neglect of duty was a proximate cause of the death of his patient.” In Taylor v. Telegraph Co., 95 Iowa, 744, 64 N. W. 662, wherein the question was whether the death of a horse had been caused by exposure, it is said: “The evidence as to the death of the animal from exposure on that night is not as definite and certain as if the death had been caused by accident or violent means, such as a collision of trains, or the like, but we think it was a fair question for the jury.” In the nature of things, reasonable probability as to the cause of the death of the horse is the most that can be proven in a case like this; and, if the evidence discloses facts which show such reasonable probability as convinces the jurors as to the cause of death, they may surely act upon it, though, as they were told, they must not indulge in conjecture, speculation, or guesswork. Absolute certainty is not required to entitle a party to recover, but only a preponderance of the evidence. Holding the plaintiff to the burden of proving that in all reasonable probability the cause of the death of the horse was the failure to deliver the message in due time, we inquire as to the sufficiency of the evidence to warrant the court in submitting the issue to the jury, and in overruling the motion for new trial.

5. There is much evidence as to the nature of the disease, the best time for its treatment, and the condition of the horse from day to day during its sickness. This evidence is so minute and lengthy that we will not do more than refer to it in a general way. Dr. Miller states the condition of the horse at the time he saw it (June 28th) to be as follows: “The horse had pneumonia, commonly called ‘lung fever.’ He was breathing rapidly. His pulse was increased, his temperature raised. His nostrils were somewhatdilated. His mucous membranes were heightened in color, and he looked depressed,--held his head lower than usual. He was breathing about 18 per minute. Normal would be 10 or 12 times a minute. His pulse was 64 to the minute; normal, 40, though it varies with the change...