Markley v. W. Union Tel. Co.

• Decision Date: 02 July 1909
• Citation: 144 Iowa 105,122 N.W. 136
• Parties: MARKLEY v. WESTERN UNION TELEGRAPH CO.
• Court: Iowa Supreme Court

144 Iowa 105

122 N.W. 136

MARKLEY

v.WESTERN UNION TELEGRAPH CO.^d1

Supreme Court of Iowa.

July 2, 1909.

Appeal from District Court, Carroll County; Z. A. Church, Judge.

The plaintiff brought this action for damages for mental suffering, caused by negligent delay in the delivery of a telegraphic death message. At the close of his evidence the trial court dismissed his case, and entered judgment against him for costs. Plaintiff appeals. Reversed.George W. Bowen and J. B. McCrary, for appellant.

Lee & Robb, for appellee.

EVANS, C. J.

The plaintiff was a resident of Plattsmouth, Neb., at the time of the occurrences complained of herein. On December 28, 1906, at about 9:45 p. m., the plaintiff's brother filed with the defendant at Glidden, Iowa, the following prepaid message for immediate transmission to the plaintiff:“Mother not expected to live until morning. Come at once.” This message was immediately transmitted to defendant's operator at Plattsmouth, but was not delivered to the plaintiff until 9 or 10 o'clock a. m. of December 31st. Thereupon the plaintiff took the first train, leaving his home at 5 p. m., on the same day, and arriving at the station nearest his mother's home at 11:30 p. m. Upon such arrival he learned that his mother had died at 4 o'clock that day. His petition averred that on February 27, 1907, he presented his claim in writing to the defendant company by serving written notice thereof upon one William Clement, its agent at Plattsmouth, Neb., and that he likewise presented his claim to the defendant on February 28, 1907, by serving written notice thereof on one Flansburg, the agent of the defendant company at Glidden, Iowa. The answer of the defendant was a general denial. The plaintiff offered evidence tending to support all the allegations of his petition. The trial court ruled out all evidence offered by him tending to prove the presentation of his claim on February 27th by serving written notice upon William Clement. That such claim was presented on February 28th by serving written notice upon Flansburg at Glidden was conceded at the trial. At the close of the evidence the trial court directed a verdict on the ground that the plaintiff had not proved a presentation of his claim within 60 days from the time his cause of action accrued, as required by section 2164 of the Code. The only controversy presented to us turns on this question.

1. The plaintiff attempted to prove by C. D. Quinton, sheriff of Cass county, Neb., that he had served the written notice pleaded by plaintiff upon defendant's agent at Plattsmouth. The written notice contained the following indorsement and return: “The foregoing notice came into my hands for service on the 25th day of February, 1907, and on the 27th day of February, 1907, I duly served the same upon the Western Union Telegraph Company by reading the same to William Clement, their duly authorized agent at Plattsmouth, Nebraska, and delivering to him a true copy thereof. All done on the day and at the place above written. C. D. Quinton, Sheriff Cass County, Nebraska.” This return was not sworn to, and was therefore not a sufficient compliance with section 4681 of the Code, which provides that such proof of service may be made by affidavit within six months. To avoid the necessity of producing the sheriff as a witness the plaintiff procured a stipulation from defendant's counsel, to the effect “that if C. D. Quinton, sheriff of Cass county, Neb., were present, he would testify that on the 27th day of February, 1907, he served the notice in question upon the Western Union Telegraph Company, defendant herein, by reading the same to William Clement, their duly authorized agent in Plattsmouth, Neb., and delivering him a true copy thereof. Said evidence to be subject to objections which the defendant may press at the time the exhibit is offered in evidence. The evidence to have the same force and effect as though the witness were present on the witness stand, testifying to the above statements.” The plaintiff offered in evidence the written notice referred to, together with the stipulation of counsel in reference to the testimony of the sheriff. Thereupon the defendant objected to the evidence as incompetent, on the ground that the statement that “Clement is the duly authorized agent of the defendant” is a mere conclusion of the witness. This objection was sustained. Thereupon the plaintiff was recalled, and the following questions were put to him by his counsel, each of which was ruled out by the court upon objection that the same was incompetent and a conclusion. “Q. Now, Mr. Markley, you said in your former examination that from the time you commenced to work for Mr. Espenberger to the time of receiving this telegram that you were frequently at the depot. I will ask you if you saw William Clement there? Q. What was this man doing? Q. Do you know who the operator at Plattsmouth was for the Western Union Telegraph Company? Q. Did you see any one outside of Mr. Clement working at the telegraph office designated on or about the 27th of February, 1907, and before and after? Q. Have you seen Mr. Clement sending telegrams or delivering telegrams from the office of the Western Union Telegraph Company, the latter part of February, 1907, at Plattsmouth, Neb.?” As already indicated, none of these questions were permitted by the court to be answered. The trial court erred in the first instance in sustaining objection to the purported testimony of the sheriff. That such testimony involved a conclusion to some extent may be conceded. But it was such a conclusion as is usually, if not necessarily, involved in the general knowledge obtained by the public as to the identity of agents of corporations dealing with the public. Such knowledge is usually a matter of inference, arising from the apparent agency, and it is sufficient prima facie proof of such fact. The purported testimony of the sheriff would have been sufficient in form to constitute...