McNeil v. Postal Telegraph Cable Co.
| Decision Date | 15 February 1912 |
| Citation | 134 N.W. 611,154 Iowa 241 |
| Parties | HENRY C. MCNEIL and WILBUR C. MCNEIL v. POSTAL-TELEGRAPH CABLE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. JOHN F. OLIVER, Judge.
ACTION to recover damages growing out of defendant's failure to promptly deliver a telegram. Trial to a jury. Verdict for plaintiffs in the sum of $ 900, and defendant appeals.
Affirmed.
Milchrist & Scott, for appellant.
Henderson & Fribourg, for appellees.
Plaintiffs were dealers in lime and cement at Sioux City, Iowa, in January of the year 1911, and on the 20th day of that month at 3 o'clock p. m., the Western States Portland Cement Company of Kansas City, Mo., delivered a telegram addressed to plaintiffs in the following words: The rate charged was duly paid; but the message was not delivered to plaintiffs until the morning of January 21st. Plaintiffs alleged in their petition: Testimony was adduced in support of the various allegations of the petition, and the jury returned a verdict for plaintiffs upon which judgment was rendered.
While something like eight errors are assigned as grounds for reversal, the entire argument centers around the one proposition that plaintiffs did not show themselves entitled to the damages claimed or to anything more than nominal damages; in other words, that the damages allowed are purely speculative and fictitious, and not such as were in the contemplation of the parties. The question thus presented is a nice one, and one upon which the authorities are not in entire harmony. Apparently we have two lines of cases in this court. On the one hand are Evans & McCloud v. W. U. Co., 102 Iowa 219, and Bennett v. W. U. Tel. Co., 129 Iowa 607, 106 N.W. 13, and perhaps others; and on the other, Lucas v. Tel. Co., 131 Iowa 669, 109 N.W. 191; Hise v. W. U. Tel. Co., 137 Iowa 329, 113 N.W. 819; Larsen v. Tel. Co., 150 Iowa 748, 130 N.W. 813; McPeek v. Tel. Co., 107 Iowa 356, 78 N.W. 63; Hendershot v. W. U. Co., 106 Iowa 529, 76 N.W. 828; Herron v. W. U. Co., 90 Iowa 129, 57 N.W. 696; Garrett v. W. U. Tel. Co., 83 Iowa 257, 49 N.W. 88; Pennington v. W. U. Co., 67 Iowa 631, 24 N.W. 45; Manville v. W. U. Co., 37 Iowa 214, and others of the same character. Defendant contends that the case is ruled by the first class cited, and plaintiff with just as much confidence insists that it is ruled by those last cited.
A careful examination of the cases relied upon by appellant disclosed that they are not in point. The Evans case, supra, does not support its contention. Really it is an authority for the plaintiff in so far as it has any bearing upon the issue here presented. Bennett v. Tel. Co., supra, is more nearly in point, although that case is not controlling. There the message was a mere inquiry which involved no obligation on the part of either the sender or receiver; and the count expressly held that if the message had constituted an offer or a direction to buy, ship, or sell, the result would have been different. McPeek v. Tel. Co., 107 Iowa 356, 78 N.W. 63, was distinguished upon this identical ground. Mickelwait v. Tel. Co., 113 Iowa 177, 84 N.W. 1038, does not support appellant's contention. Plaintiff in that case was allowed all the profits which he showed he was entitled to. The question seems to us to be ruled in principal at least by Larsen v. Tel. Co., 150 Iowa 748, 130 N.W. 813; Hise v. Tel. Co., 137 Iowa 329, 113 N.W. 819; and McPeek v. Tel. Co., 107 Iowa 356 at 359, 78 N.W. 63.
In McPeek's case it is said: --citing cases. In Larsen's case, we said:
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 the Winnebago Indian agency, and that 'though the telegram did not constitute an appointment, it indicated the intention of the office to appoint him, had he answered in the affirmative.' The telegram, then, according to the usage of the department, was equivalent to a tender of the position, and, as the intention to appoint, had the offer been accepted, was proven, it was to be inferred that such purpose would have continued and been made effective. A settled design having been proved to exist, it is a matter of legitimate inference that it would have been persisted in and acted upon but for some supervening obstacle. 1 Wigmore Evidence, sections 102, 112. The evidence, then, was such as to fairly put in issue whether, under the circumstances, the sending of the telegram was equivalent to a tender of the appointment to the position of carpenter, and there was no error in submitting the issue to the jury. The plaintiff testified that, had the telegram been received, he would have accepted the position, and circumstances proven tended to corroborate such testimony; but it is contended that whether he would have done so, and whether the acting commissioner of Indian affairs would have given him the appointment, were mere matters of speculation. Of course, no one can say to a certainty what might have been done under problematical conditions in the past. All that is possible in such a case is to determine from the proof what in all reasonable probability would have occurred under conditions supposed. Such is the inquiry involved in nearly all personal injury cases, and was proper for determination in the case at bar. In Barker v. Telegraph Co., 134 Wis. 147, (114 N.W. 439, 14 L. R. A. (N. S.) 533, 126 Am. St. Rep. 1017), a person in Chicago had concluded to abandon a trip to Arizona to take treatment from complainant, and caused a telegram to be sent to him at Madison, Wis., inquiring whether he would be in Madison on Sunday or would go to Chicago. The company failed to deliver the message, and, as the person in Chicago had transportation, he left for Arizona before complainant learned of his desire for treatment. The court held that he was entitled to recover, and that it was sufficient to show by 'reasonable inference from established facts, according to the known forces of nature and human nature, that plaintiff would have made pecuniary gains if he had received the telegram, and was prevented from so doing solely by its nondelivery without an intervening independent cause.' In Derry v. Flitner, 118 Mass. 131, the defendant wrongfully occupied a place of shelter to which plaintiff's vessels were entitled. Two of the latter were exposed to and sunk by the storm. The court sustained the inference that, but for defendant's wrong, plaintiff's vessels would have been in a place of safety. See McPeek v. Telegraph Co., 107 Iowa 356, 78 N.W. 63. As said, the probability of a different result but for the negligence of the wrongdoer is involved in nearly every negligence case, and there is no reason why the same rule should not be applied to the alleged negligent conduct of a telegraph company.
Again in Hise's case, which is even more closely in point, we announced this rule:
Plaintiff was not selling his own land, and the rule which holds that damages may not be recovered from the purchaser for refusing to carry out his contract of purchase, if another person stands ready to take the property at the same or a greater price, has here no application. The plaintiff's relation to the proposed sale was that of agent merely, and his interest therein was measured solely by the commission or margin reserved under his agreement with the holder of the title. Had the message been delivered to him and he had accepted the offer then communicated, his profit would have been earned, and the mere fact that, by further effort thereafter made, and after the commencement of this action to recover damage because...
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