Potter v. W. Union Tel. Co.

• Citation: 138 Iowa 406,116 N.W. 130
• Parties: POTTER v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 08 May 1908
• Court: Iowa Supreme Court

138 Iowa 406

116 N.W. 130

POTTER

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Iowa.

May 8, 1908.

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Action at law, to recover damages for failure to deliver a message announcing the fatal illness of plaintiff's mother until it was too late for him to reach her bedside before death. Trial to a jury. Verdict and judgment for the sum of $1,000. Defendant appeals. Affirmed.Geo. H. Fearons, Carr, Hewitt, Parker & Wright, M. P. Smith, and Dawley, Hubbard & Wheeler, for appellant.

W. E. Steele and Rickel, Crocker & Tourtellot, for appellee.

DEEMER, J.

Plaintiff's mother, who was 86 years of age, lived at Leland, in the state of Illinois, and plaintiff with his wife lived in the city of Cedar Rapids, in this state. Late in the afternoon of August 1, 1905, plaintiff's brother, who lived at Leland, delivered to the defendant a message, addressed to plaintiff, by proper street number, reading as follows: “Mother can't live till morning.” This message was received at defendant's office in the city of Cedar Rapids at about 8:40 p. m., August 1st, but was not actually delivered to plaintiff until about 8:30 a. m. August 2d, when it was handed to plaintiff's wife, she receipting therefor at her home in the city of Cedar Rapids. She immediately telephoned its contents to her husband, and upon receipt thereof plaintiff made proper inquiries to find how he could reach Leland, and was informed that he could not do so except by train leaving at 3:33 a. m., August 3d. He took that train, reached Leland during that day, and found that his mother had died at 4:55 p. m., August 2d. Had the message been delivered at any time after its receipt at the Cedar Rapids office, and in season for him to have taken the 3:33 morning train, he might have reached his mother's bedside before she died. The trial jury found that defendant was negligent in delivering the message, and awarded plaintiff the amount heretofore stated. The appeal presents four principal questions for our determination. The instructions are not set forth; and, as they are not challenged, we must presume that they announced correct principles of law, and, so far as possible, corrected any errors committed during the trial.

Plaintiff was permitted to prove that two or three times just preceding her death his mother called for him, and wanted to know of those in attendance why he did not come, and that this fact was communicated to him almost immediately upon his reaching Leland, causing him great pain and mental anguish. This testimony was objected to as hearsay, incompetent, and immaterial, but the objection was overruled. The courts which have passed upon this character of testimony are in hopeless conflict in their holdings. See W. U. Co. v. Jackson, 35 Tex. Civ. App. 419, 80 S. W. 649, and W. U. Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725, holding that such testimony is inadmissible, and Whitten v. W. U. Co., 141 N. C. 361, 54 S. E. 289, and West. Union Co. v. Waller (Tex. Civ. App.) 72 S. W. 264, holding that it is proper to be received, as bearing upon the amount of damages to be awarded. The question was before us in the case of Collar v. Telegraph Co., affirmed without opinion September 27, 1906, and, the members of the court being equally divided in opinion, no pronouncement was made. No change of view has occurred since that time, and the ruling must be affirmed by operation of law.

2. It is contended that plaintiff should have shown not only that he could but that he would have reached Leland before his mother's death had the message been properly delivered. In passing upon this question we must, for reasons already stated, assume that the court correctly stated the law upon this proposition, and that the jury found the facts necessary to a recovery to be as plaintiff claimed them to be. The only point which we may consider in this connection is, was there enough testimony to take the case to a jury upon these propositions? It very clearly appears from the testimony that, had the message been delivered in time for plaintiff to have taken the 3:33 train on the morning of August 2d, he could have reached his mother some time before she died, and, as we shall see, it was a question for the jury to determine whether or not defendant was negligent in failing to make delivery of the message so that he might have done so. It is true that plaintiff did not testify directly that he would have taken that train had there been time to have done so; but it does appear that, as soon as plaintiff received the message, he instituted immediate inquiries of the proper railway agents as to how he could reach Leland in the most expeditious manner, and that he took the first train which promised to get him to his mother's home. Surely this showing as to what plaintiff did do after the receipt of the message toward reaching his dying mother is sufficient evidence as to what he would have done had the message been delivered the previous evening. At any rate, it was enough to take the question to the jury.

3. The next proposition is that there was not sufficient testimony of delay to justify the submission of defendant's negligence to the jury. Solving this question, we must start with the conceded facts that the message was received at defendant's office in Cedar Rapids not later than 8:40 p. m., August 1st; that it was addressed to plaintiff by street and number, and that he lived but 5 1/2 blocks from the defendant's office; that the message was not in fact delivered to plaintiff's wife until about 8:30 the next morning, when its contents were telephoned to plaintiff. It also appears, without conflict, that defendant's Cedar Rapids office was open all night, and that it had three messenger boys in service during the entire evening. If this makes out a prima facie showing for plaintiff, then there was enough to send the case to a jury. Section 2164 of the Code provides that, in actions such as this, negligence will be presumed upon proof of unreasonable delay in the delivery of the message, and...