Larsen v. Postal Telegraph Cable Co.

• Decision Date: 07 April 1911
• Citation: 130 N.W. 813,150 Iowa 748
• Parties: WALTER T. O. LARSEN, v. POSTAL TELEGRAPH CABLE CO., Appellant
• Court: Iowa Supreme Court

130 N.W. 813

150 Iowa 748

WALTER T. O. LARSEN, v. POSTAL TELEGRAPH CABLE CO., Appellant

Supreme Court of Iowa, Des Moines

April 7, 1911

Appeal from Shelby District Court.--HON. A. B. THORNELL, Judge.

ACTION for damages resulted in a verdict against defendant, from which it appeals.--Affirmed on condition.

Affirmed on condition.

Cullison & Cullison, for appellant.

Byers & Byers and D. O. Stuart, for appellee.

OPINION

LADD, J.

The plaintiff passed the civil service examination with a grade of ninety-nine percent, and, upon request of the Acting Commissioner of Indian Affairs, through the Department of the Interior, the United States Civil Service Commission certified three names, one of which was that of plaintiff from which that officer might select a carpenter for the Winnebago Indian Reservation. Upon receipt thereof May 12 1906, the Acting Commissioner of Indian Affairs delivered to defendant the following telegram: "To Walter T. O. Larsen, Harlan, Iowa. Will you accept appointment carpenter, seven hundred twenty per annum, Winnebago agency, Nebraska? Wire answer." Receiving no answer to the telegram, the Acting Commissioner notified the Civil Service Commission, through the Secretary of the Interior, that plaintiff had been selected, and that, as no reply had been received, another certification of names of persons eligible for the place was desired. On June 2, 1906, the United States Civil Service Commission addressed a letter to Larsen, advising him that the Interior Department had reported having tendered him the appointment as carpenter and had received no reply, and called his attention to the circumstance that if he declined he would cease to be eligible for the position. Larsen replied, saying he had received no communication such as mentioned, and expressed a hope that the position was still available, as he was anxious to accept it. Though the Civil Service Commission had certified other names from which to choose a carpenter, that of plaintiff was added, and his name was certified several times thereafter, but he never received the appointment. He claims damages in this action because of the omission to deliver the telegram quoted.

I. No notice of the claim for damages was served on the defendant until January 31, 1907, and it is contended that as this was more than sixty days after the cause of action had accrued there can be no recovery. Section 2164 of the Code provides: "In any action against any telegraph or telephone company for damages caused by erroneous transmission of a message, or by unreasonable delay in delivery of a message, negligence on the part of the telegraph or telephone company shall be presumed upon proof of erroneous transmission or of unreasonable delay in delivery, and the burden of proof that such error or delay was not due to negligence upon its part shall rest upon such company but no action for the recovery of such damages shall be maintained unless a claim therefor is presented in writing to such company, officer or agent thereof, within sixty days from time cause of action accrues." The entire omission to deliver can not be regarded as an "erroneous transmission." Is such omission to deliver included in the expression "unreasonable delay in delivery?" This expression seems to contemplate a delivery, but after the lapse of a reasonable time within which this might have been effected. If a message is erroneously transmitted or there is an actual delivery, though unreasonably delayed, the addressee receives the communication and is informed therefrom of the mistake or negligence of the company, and under such circumstances it is no hardship to require him to present his claim within such reasonable time as the Legislature may require, in order that it may investigate while the facts are fresh, and remedy the irregularity, if any existing, in the interest of the service. But in the case of nondelivery, the addressee ordinarily is not aware of the existence of the message. Only the sender and the company may know of this until long after the sixty days prescribed have elapsed, and it would seem unjust to deprive him of all remedy, in the absence of any fault on his part. Only the carrier may be aware of the nondelivery, and it ought not to be permitted to escape liability for negligence by according this statute a meaning which would extend its scope beyond relief for the mischief intended. As there was no delivery, the omission can not be construed as a mere delay, and plaintiff was not required to present his claim to the company before beginning the action.

II. The telegram was in the form of a mere inquiry of whether plaintiff would accept the appointment, and it is contended that an acceptance would not have given him the position, and for this reason plaintiff can recover nothing because of nondelivery. See Bennett v. Telegraph Co., 129 Iowa 607, 106 N.W. 13; Wilson v. Telegraph Co., 124 Ga. 131 (52 S.E. 153). The Acting Commissioner of Indian Affairs testified that he had selected plaintiff for the position of carpenter at...