The Western Union Telegraph Company v. Cline

• Decision Date: 28 November 1893
• Docket Number: 993
• Citation: 35 N.E. 564,8 Ind.App. 364
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. CLINE
• Court: Indiana Appellate Court

35 N.E. 564

8 Ind.App. 364

THE WESTERN UNION TELEGRAPH COMPANY v. CLINE

No. 993

Court of Appeals of Indiana

November 28, 1893

From the Monroe Circuit Court.

Judgment affirmed, at costs of appellant.

J. H Louden and T. J. Louden, for appellant.

J. R East and R. G. Miller, for appellee.

OPINION

LOTZ J.

This action was commenced by the appellee to recover damages for the alleged failure of the appellant to transmit and deliver to appellee, within a reasonable time, a telegraph message sent by one John Evans, of Spencer, Ind., directed to the appellee, at Bloomington, Ind.

The message was in these words: "Joe Cline. Come at once. Mother is dying." A demurrer was overruled to the complaint. This is the first error assigned. An examination of the complaint shows it to be sufficient to withstand the demurrer. Issues of fact were joined and tried by a jury, which returned a verdict for appellee in the sum of $ 125. A motion for a new trial was made by appellant, which was overruled. This is the only other error assigned.

Appellant insists that there is a total failure in the evidence to show that the appellee sustained any damages. It was averred, and conceded on the trial, that the person referred to in the message as dying was the mother-in-law of the appellee, and there was evidence tending to show that if the message had been transmitted and delivered promptly, the appellee and the members of his family might have been present at the time of her death, and that by reason of the delay they were prevented from being present. It is settled by the decisions in this State that there may be a recovery for mental anguish and suffering, although no pecuniary loss other than the cost of the message be shown. Western Union Tel. Co. v. Newhouse, 6 Ind.App. 422, 33 N.E. 800; Western Union Tel. Co. v. Eskridge, 7 Ind.App. 208, 33, 33 N.E. 238, N.E. 238; Western Union Tel. Co. v. Stratemeier, 6 Ind.App. 125, 32 N.E. 871; Reese v. Western Union Tel. Co., 123 Ind. 294, 24 N.E. 163; Renihan v. Wright, 125 Ind. 536, 25 N.E. 822.

Counsel for appellant strenuously insist that the evidence shows that the message was delivered to its agent at Spencer at 7:35 P. M., and that the agent informed the sender that it would have to be sent by way of Indianapolis and Louisville, and that the office would close at Bloomington at 8 P. M., and that it could not, in the usual course of business, transmit the message before the closing hour of its office at Bloomington. If this were the undisputed evidence in the case, the position would be well taken, but we have examined the evidence on this point and find it conflicting. We must decline to weigh it.

It is next insisted that the original message delivered to appellant's agent at Spencer was not given in evidence nor was...