McNeil v. Postal Telegraphcable Co.

• Decision Date: 15 February 1912
• Citation: 154 Iowa 241,134 N.W. 611
• Parties: MCNEIL ET AL. v. POSTAL TELEGRAPHCABLE CO.
• Court: Iowa Supreme Court

154 Iowa 241

134 N.W. 611

MCNEIL ET AL.

v.POSTAL TELEGRAPHCABLE CO.

Supreme Court of Iowa.

Feb. 15, 1912.

Appeal from District Court, Woodbury County; 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.

DEEMER, J.

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: “Kansas City, Mo. Jan. 20, '11. H. C. McNeil & Son, Sioux City, Iowa. Price paving job one seventy nine which includes forty cents sac. Western States Portland Cement Co.” 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: “That had the said telegram been transmitted and delivered to plaintiffs promptly and in due course of business plaintiffs could and would have sold 6,000 barrels of cement at a profit of 15 cents per barrel; the plaintiffs having at said time an oral contract for such sale with Flinn & Hanlon, of Sioux City, Iowa, at such a price, to wit, $1.44 per barrel. That plaintiffs would have bought said 6,000 barrels of cement from the sender of said telegram and would have sold the same and made the aforesaid profit, amounting in the aggregate to $900.” 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, 71 N. W. 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, 6 L. R. A. (N. S.) 1016;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, 43 L. R. A. 214, 70 Am. St. Rep. 205;Hendershot v. W. U. Co., 106 Iowa, 529, 76 N. W. 828, 68 Am. St. Rep. 313;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, 25 N. W. 838, 56 Am. Rep. 367;Manville v. W. U. Co., 37 Iowa, 214, 18 Am. Rep. 8; 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 court 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, 43 L. R. A. 214, 70 Am. St. Rep. 205, 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, 359, 78 N. W. 63, 70 Am. St. Rep. 205.

In McPeek's Case it is said: “This action is based on the negligence of the defendant in the performance of a duty in its public capacity as a common carrier of messages. In all such actions, sounding in tort, the injured party is not limited to damages which might reasonably have been within the contemplation of the parties, but recovery may be had for all the injurious results which flow therefrom, by ordinary natural sequence, without the interposition of any other negligent act or overpowering force”--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 Ev. §§ 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...