Herron v. W. Union Tel. Co.

• Decision Date: 31 January 1894
• Citation: 57 N.W. 696,90 Iowa 129
• Parties: HERRON v. WESTERN UNION TEL. CO.
• Court: Iowa Supreme Court

90 Iowa 129

57 N.W. 696

HERRON

v.WESTERN UNION TEL. CO.

Supreme Court of Iowa.

Jan. 31, 1894.

Appeal from district court, Lee county; J M. Casey, Judge.

Action to recover for damages alleged to have been caused by the negligence of defendant in not delivering in due time a telegraphic message. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.Cummins & Wright, for appellant.

Casey & Stewart, for appellee.

ROBINSON, J.

On the 31st day of March, 1890, the plaintiff was the owner of a stallionnamed “Mark,” which was in the custody of his brother George Herron, at Warren, in Lee county. The plaintiff was in the town of Clarksville, in Butler county, where he was engaged with one Wintrode in selling a fence machine. On that date one George Cassidy went to the place where the horse was kept, and made an offer for him to a brother of plaintiff, named B. B. Herron, and requested that he telegraph the offer to the plaintiff. Accordingly B. B. Herron went to the office of the defendant in Warren, and left to be sent to plaintiff a night message which read as follows: “Warren, March 31, 1890. To C. C. Herron, Clarksville, Iowa: Have traded with George Cassidy for Mark, three horses, 1, 2, 3, two hundred balance, fifty dollars young cattle. B. B. Herron.” There was evidence which tended to show that the offer of Cassidy was to be considered withdrawn on Wednesday, April 2d, if not accepted on or before that day; that B. B. Herron had no authority to accept the offer or sell the horse; that he sent the message as the agent of Cassidy; and that the agent of defendant at Warren knew that it related to a trade, and that an answer was expected the next day. The dispatch was received by the agent of defendant at Clarksville before 9 o'clock in the morning of April 1st, and was at once given to a messenger to deliver. After an absence of several hours he returned it with the statement that he could not find the person to whom it was addressed. The agent then sent a service message to the office at Warren, stating that plaintiff was unknown in Clarksville, and asking for a better address. At noon of Wednesday he received an answer stating that plaintiff was a patent fence man, and would be found in town. At about the time that dispatch reached the agent at Clarksville, the plaintiff received a letter from B. B. Herron, telling of the trade, and asking why the dispatch had not been answered. The plaintiff then went to the office, and sent a dispatch to his brother to do the best he could with Cassidy. While he was there, the dispatch of his brother was delivered to him. His dispatch was not delivered to his brother until Wednesday evening, and Cassidy was not seen until the next day, when he refused to take the horse. The plaintiff returned to Lee county in July, and took the horse to Nebraska, where he sold him for $50. He seeks to recover in this action the damages he claims to have sustained in consequence of the failure of defendant to deliver the message in time for him to accept the offer of Cassidy. The judgment was rendered for $177.65, the amount of the verdict, with interest and costs.

1. The appellant contends that the verdict was not authorized by the evidence, and insists that it exercised due diligence to deliver the message. We think there was sufficient evidence of negligence to support a verdict for the plaintiff. Clarksville is shown by the record to have been a town of about 600 people in April, 1890. The plaintiff, with his wife and Wintrode, went to Clarksville on the 25th day of March, 1890, and stopped at the only hotel in the town, where he registered. A sample of the fence which the machine he was selling made was set up near to the principal business street, one block from the hotel, from which it could be seen. He and his companion were then engaged in exhibiting the fence to the public, and in trying to sell the machine, within the free delivery limits of the Clarksville office, during the last day of March and the first two days of April. Belden, the messenger of defendant, had lived in the town 25 years, was running a bus line, carried the mails and express, and was well acquainted with its people. There is some conflict in the evidence in regard to the effort he made to deliver the message. He claims to have inquired of the landlord of the hotel where plaintiff stopped, at the restaurant, at one of the railway depots, and of a passenger on a train, without obtaining any information in regard to plaintiff. There is evidence, however, which tends to show that the landlord, in answer to his question, told him to look at the hotel register; that he did so, but looked only at the names under the latest date; that he had seen the plaintiff several times; that when he inquired at the restaurant he said plaintiff “belonged to the fence gang,” and was told that he was at the hotel; and that he delivered a dispatch to Wintrode on the 1st day of April, in the presence of plaintiff. It is evident that if the messenger had used ordinary diligence in his search he would have found the plaintiff, and his negligence is that of the defendant.

The sending of the service message did not relieve it of responsibility, for the reason that the address of the plaintiff as given in the dispatch to him was all that was necessary to enable the defendant to find him readily. It is said that B. B. Herron knew that the defendant had not found his brother, and could have given it the required information, so that his brother would have been found, and a message accepting Cassidy's offer received, in sufficient time to have effected the sale, but that he negligently withheld the information. If that be conceded to be true, it does not follow that his negligence was that of the plaintiff, for the reason that he appears to have been the agent of Cassidy for the purpose of sending the dispatch.

2. It is said that if the dispatch was sent by B. B. Herron as the agent of Cassidy, then, so far as it related to plaintiff, the act in sending it was purely voluntary, and conferred upon him no right of action on account of negligence in sending it. The Code provides as follows: “1328. Any person employed in transmitting messages by telegraph, must do so without unreasonable delay, and anyone who wilfully fails thus to transmit them, or who...