The Western Union Telegraph Company v. Morris

• Decision Date: 11 July 1900
• Docket Number: 759
• Citation: 10 Kan.App. 61,61 P. 972
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. FRANK MORRIS
• Court: Kansas Court of Appeals

61 P. 972

10 Kan.App. 61

THE WESTERN UNION TELEGRAPH COMPANY v. FRANK MORRIS

No. 759

Court of Appeals of Kansas

July 11, 1900

Decided July, 1900.

Error from Jackson district court; CHAS. F. JOHNSON, judge.

Judgment reversed.

SYLLABUS

1. EVIDENCE -- Contributory Negligence -- Pleading. It is not error for the trial court to exclude evidence of contributory negligence where such defense is not pleaded. Contributory negligence is an affirmative defense and must be pleaded to be available.

2. NEGLIGENCE -- Action by Husband -- Measure of Damages. A husband may, in an action for damages resulting from injuries sustained by his wife by reason of the negligence and carelessness of another, in some cases recover for the loss of his own time in at tendance and nursing his wife; the value of the husband's time, however, while so engaged is determinable with reference to its value as a nurse; but he cannot recover, in addition, for the loss of his time, as such, its value in his ordinary occupation, nor for the reasonable value of his time which he may have lost from his business.

George H. Fearons, and Rossington, Smith & Histed, for plaintiff in error.

S. B. Isenhart, for defendant in error.

OPINION

MCELROY, J.:

This action was brought by Frank Morris against the Western Union Telegraph Company in the district court of Jackson county for the recovery of damages alleged to have been sustained through the negligence and carelessness of the defendant. Frank Morris, together with his wife, Daisy E. Morris, resided a short distance from Hoyt, in Jackson county. Mrs. Morris, on the 4th day of December, 1895, became sick; she desired the attendance of their family physician, Doctor Dawson, of North Topeka; and on the evening of that date, at 7:30 o'clock P. M., she caused a message to be prepared and delivered to the agent of the telegraph company at its office in Hoyt, and paid the charges for its transmission, the message reading as follows:

"HOYT, KAN., December 4, 1895.

"Doctor Dawson, North Topeka, Kan.:

"Come on the morning train and not fail; answer. I will meet you. FRANK MORRIS."

The message was delivered to Doctor Dawson in due time on the same evening, but when delivered it read:

"HOYT, KAN., December 4, 1895.

"Doctor Dawson, North Topeka, Kan.:

"Come on the morning train and not answer.

FRANK."

Hoyt is a station on the Rock Island railroad about twenty miles north of Topeka. There were two trains daily leaving Topeka for Hoyt, at 6:30 A. M. and at 3:30 P. M. If the telegram had been properly transmitted and delivered, Doctor Dawson could have taken the early morning train, and, if he had, would have arrived at the home of the defendant in error at about eight o'clock A. M. of December 5. There was a man of the name of "Fronk" living near Hoyt, with whom Doctor Dawson was acquainted, and, presuming that the message was from this individual, he did not answer the call. Had he known the message was from Frank Morris or his wife, he would have gone to Hoyt as requested. If he had taken the morning train he could have reached his patient about eight o'clock A. M. of December 5; but by reason of the error in the transmission of the telegram he did not leave Topeka until he received a second message, and he did not reach the bedside of his patient until five o'clock P. M. of that date. He found his patient suffering with inflammation of the peritoneum, called acute peritonitis. The doctor remained with the patient on that day a few hours, and again visited her on December 7. She had no further medical treatment, except that Doctor Dawson sent medicines to her from time to time until the 24th of December, when she was placed in charge of Doctor Plummer, of North Topeka. On December 29 she underwent a surgical operation, which consisted in removing her ovaries and fallopian tubes. The operation was performed by Doctor McClintock, assisted by Doctor Plummer.

It was the plaintiff's contention that the operation was the direct and proximate result of the negligence and carelessness of the telegraph company in not transmitting his message, so that medical attendance could have been earlier secured for his wife; and that if the message had been properly transmitted the doctor would have reached the patient in time to have removed the causes which ultimately resulted in the operation.

The telegraph company practically admits its negligence in the transmission of the telegram, but denies that the surgical operation or any portion of the prolonged sickness of Mrs. Morris resulted therefrom.

This action was for the loss of services and other pecuniary damages claimed to have been sustained by reason of the prolonged sickness and operation. A trial was had before the court and a jury, which resulted in a verdict and judgment for plaintiff in the sum of $ 1276. The defendant filed its motion for a new trial, which was overruled, and, as plaintiff in error, presents the record to this court for review and alleges error in the proceedings of the trial court -- that the trial court erred in the admission of testimony, in the exclusion of evidence, in its instructions to the jury, and in overruling the motion for a new trial.

The first contention is based upon the admission of the following testimony of Doctor Dawson:

"Ques. I will ask you, if you had seen Mrs. Morris at the time that her disease became acute, if in your opinion you could have cured her and prevented the operation that afterward took place? Ans. Yes, sir; if I had seen her at that time, there would have been no trouble.

"Q. Now, I will ask you, if you had seen her at or very near after this inflammation became severe and acute, what would you or could you have done for her? A. I could have stopped the pain immediately and relieved the inflammation.

"Q. Now, if you had been there to see this patient in time -- that is, in the early inception of peritonitis, when it commenced -- could you or would you have prevented these different stages which she went through with; state whether in your opinion as a physician you would have worked a cure in her case? A. That would have saved her; she would not have had any pus formation.

"Q. So that would have saved this operation, in your judgment? A. Of course, the pus formation was the cause of the operation; preventing that local hyperaemia congestion, stasis, secretion, and inflammation, there would have been no formation of pus, and of course no operation."

The witness had been the family physician of the Morris family for about four years; he visited Mrs. Morris on December 5 and 7, 1895, made examinations, noted her symptoms, watched the development of her ailment, prescribed for her until the 24th day of that month, and knew the...