McPeek v. Western Union Telegraph Co.

• Decision Date: 26 January 1899
• Citation: 78 N.W. 63,107 Iowa 356
• Parties: E. E. MCPEEK v. WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Iowa Supreme Court

78 N.W. 63

107 Iowa 356

E. E. MCPEEK v. WESTERN UNION TELEGRAPH COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 26, 1899

Appeal from Henry District Court.--HON. M. A. ROBERTS, Judge.

FROM a judgment for damages alleged to have been occasioned by the negligence of the defendant in failing to promptly deliver a telegram, it appeals.

Affirmed.

Blake & Blake for appellant.

John D Dill and W. I. Babb for appellee.

OPINION

LADD, J.

September 20, 1896, after mortally wounding John Finley, the marshal of Morning Sun, Orman McPherson fled. A few days later the plaintiff saw McPherson's wife, who promised to assist him in procuring the arrest of her husband. McPeek obtained McPherson's pension papers from Keithsburg, Ill., for her and she advised him (being in secret correspondence under an assumed name) of having these, and he came to her room at the hotel at Morning Sun, where she was employed as cook, October 22, 1896, at about 10 o'clock P. M. (having so arranged earlier in the evening), and there remained until between 3 and 4 o'clock the following morning. Before coming in he gave up his revolvers, and she placed them in a bureau, where they remained during his stay. She had agreed to write to McPeek when she expected her husband, but, if he came unexpectedly, then to telegraph him. At about 7 o'clock P. M. of the twenty-second, she delivered to the defendant's agent at Morning Sun this telegram: "E. E. McPeek, Winfield. Come on first train. Answer. M. E. M."; telling him she wanted it "sent right away and delivered, and wanted an answer." Ridgeway, the agent at Winfield, usually closed his office at 6 o'clock, but was ordinarily at the station at about 9 o'clock. He received the message at 9:15 o'clock P. M., and carried it to the plaintiff's house, reaching there at about 9:30. After repeatedly rapping on the door, and being unable to arouse any one, as he says, he placed the message over the door knob, with the end of the envelope between the door and the jamb, where it was found the next day at between 9 and 10 o'clock A. M. It seems, the agent supposed the family was away from home, and would find it upon their return. They had in fact retired, and all testify that they did not hear the rapping of Ridgeway, or any noise at the door, and that they would have heard it, had there been any. The only train, carrying passengers, leaving Winfield for Morning Sun, a distance of about twelve miles, left the former place [107 Iowa 360] at 6 o'clock A. M. McPeek had told Ridgeway he was making an effort to capture McPherson, and might get a telegram from Morning Sun concerning the matter, and that if a message came, and he was unable to find him, to deliver it to Siberts, a constable. Both had repeatedly called at the office for such a telegram. It also appears that Siberts, by direction of McPeek, had arranged for a team at the livery stable and a driver to be ready for him at any time, and that Siberts was to go with McPeek in case McPherson should come to Morning Sun. The constable at the latter place, and another, had agreed to assist him, though not advised as to the nature of the business, except that it was to make an arrest. The evidence was such that the jury was warranted in finding the facts as stated, though it must be added that Ridgeway denies having previously talked with either the plaintiff or Siberts; and McPherson, who was afterwards arrested, declared he was not at Morning Sun as testified by his wife, and did not correspond with her. On the twenty-first day of October, 1896, the governor of Iowa, by proclamation, offered a reward of three hundred dollars for the arrest of McPherson, and his delivery to the proper authorities. The plaintiff's action is based on the allegation that he lost this reward through the negligence of the defendant in not delivering the message on the evening of October 22d. With these preliminary statements, we shall be able to consider the different questions presented by the record.

I. A copy of the governor's proclamation, duly certified by the secretary of state, was received in evidence over the objection of defendant. That such a reward was authorized by section 58 of the Code of 1873 is not questioned. The method of making the offer is not pointed out, but it is to be paid upon the certificate of the governor. Usage has approved offering such rewards by way of proclamations, and this fully complies with the statute. That the original proclamations made by the executive of a state should be preserved, admits of no doubt. The statutes make no express provision for such preservation, but by section 66 the secretary of state "shall have charge of and keep * * * papers which are now or may be hereafter deposited to be kept in his office." The secretary certified that he was the custodian of the record of the official acts of the executive department, and that the proclamation was a part of the files of his office. We take it, then, that this was deposited, to be kept by the secretary of state. Section 4649 provides, in substance, that acts of the executive of this state are proved by the records of the state department. The very evident purpose is to avoid the necessity of calling the governor before a co-ordinate branch of government to give evidence or answer for any of his acts. While the statute does not in express terms make such papers a part of the files to be kept and preserved by the secretary of state, we are of opinion that section 66 is broad enough to include them, that by fair implication section 4649 authorizes them to be so kept, and that, under sections 4649 and 4635 of the Code, a certified copy thereof is admissible in evidence in lieu of the originals.

II. The defendant also interposed objections to the testimony of the plaintiff, Siberts, and Mrs. McPherson to the arrangement made between them with reference to the capture of McPherson. This was original, and not hearsay, evidence. It related to circumstances and facts essential to be proven as leading up to the sending of the telegram, and had a direct bearing upon the probability of the plaintiff effecting the arrest of McPherson, had the telegram been promptly delivered. It was necessary to show the exact situation, and all that had been done to accomplish that purpose. The appellant is impressed by the danger of fraud in this class of evidence. It is suggested that, if there be possibility of fraud, it may readily be obviated by the exercise of diligence.

III. It is insisted that the damages were remote, and not such as either party might have contemplated from the wording of the message. But extrinsic evidence was admissible to show that defendant had notice of the importance of the message. Cable Co. v. Lathrop, 131 Ill. 575 (23 N.E. 583); Telegraph Co. v....