Volquardsen v. Iowa Tel. Co.

• Decision Date: 16 June 1910
• Citation: 148 Iowa 77,126 N.W. 928
• Parties: VOLQUARDSEN v. IOWA TELEPHONE CO.
• Court: Iowa Supreme Court

148 Iowa 77

126 N.W. 928

VOLQUARDSEN

v.IOWA TELEPHONE CO.

Supreme Court of Iowa.

June 16, 1910.

Appeal from District Court, Scott County; A. J. House, Judge.

Action for damages resulted in a verdict for the defendant. A motion for new trial based on 11 grounds was filed and overruled as to 10 of these and sustained as to 1. Both parties appeal; that of defendant being last perfected. Reversed on defendant's appeal. Affirmed on plaintiff's appeal.Cook & Dodge and Guernsey, Parker & Miller, for appellant.

Henry Thuenen, Jr., for appellee.

LADD, J.

The defendant owns and operates the telephone system in Davenport. The plaintiff was a subscriber and patron. He conducted a wooden shoe factory on the lots where his residence was located. Shortly after 1:30 o'clock in the morning of August 2, 1905, his wife heard a crackling sound, and, upon looking out, noticed a fire in the factory. She wakened plaintiff, who immediately went to the telephone, and took down the receiver for the purpose of giving a fire alarm. Ordinarily, removing the receiver, signals on the switch board at the central office to the employés, who then connect the line with telephone of the person with whom communication is desired. No one responded, though he called for “central” and “worked” the receiver for, as he testified, nine or ten minutes. He then handed the receiver to his wife, who got into communication with the central office in one or two minutes. Upon turning the receiver over to his wife, plaintiff went to the factory, and from there started to the fire department, which had a station about 4 1/2 blocks from his house, and met the hose cart on the way. A neighbor had advised the department of the fire, and the men with apparatus were at the scene within a minute and a half thereafter. The petition alleged that “because of the negligence of defendant company's agents in charge of said company's switch board, or because of defendant company's failure to keep sufficient or competent persons in charge of said switch board, plaintiff was unable to obtain a response from the central office of defendant company,” and by reason thereof the entire factory was destroyed, when, but for said negligence, he would have been able to have given the alarm to the fire department promptly and much of his factory building and all of the machinery would have been saved. The court submitted the issues of negligence above mentioned to the jury, but ruled, in rejecting evidence and in refusing instructions, that the damages to the building and machinery were not the proximate result thereof. The jury returned a verdict for defendant, but a new trial was granted on the ground that the court had not submitted to the jury whether “defendant was negligent in the matter of keeping its appliances for communicating with central in reasonable repair.”

This ruling was based on statutes providing, in effect, that, upon proof of unreasonable delay in the transmission of a message, the burden is upon a telephone company to overcome the inference of negligence to be drawn therefrom. These statutes (Code) may be set out:

“Sec. 2163. The proprietor of a telegraph or telephone line is liable for all mistakes in transmitting or receiving messages made by any person in his employment, or for any unreasonable delay in their transmission or delivery, and for all damages resulting from failure to perform the foregoing or any other duty required by law, the provisions of any contract to the contrary notwithstanding.

Sec. 2164. In any action against any telegraph or telephone company for damages caused by erroneous transmission of a message, negligence on the part of the telegraph or telephone company shall be presumed upon proof of erroneous transmission or of unreasonable delay in delivery, and the burden of proof that such error or delay was not due to negligence upon its part shall rest upon such company; but no action for the recovery of such damages shall be maintained unless a claim therefor is presented in writing to such company, officer or agent thereof, within sixty days from time cause of action accrues.”

Of course, the method of communication over a telephone differs from that by telegraph. Ordinarily in the former the company merely puts the sender in connection by wire with the sendee and the message is transmitted by word of mouth. The delay in the transmission or delivery contemplated by the statute is that of not furnishing the proper connection within a reasonable time as well as in otherwise transmitting messages so that upon a showing of an unreasonable delay by plaintiff it devolved upon defendant to establish by a preponderance of the evidence that such delay was not due to negligence on its part. Had the petition merely alleged unreasonable delay without describing the particular acts of negligence occasioning it or have alleged negligence generally, the ruling of the court might have been upheld. Engle v. Railway, 77 Iowa, 661, 37 N. W. 6, 42 N. W. 512. Ordinarily the defendant is in court to answer the matters averred in the petition only. Heald v. Telegraph Co., 129 Iowa, 326, 105 N. W. 588;Edgerly v. Insurance Co., 43 Iowa, 587;Wirstlin v. Railway, 124 Iowa, 170, 99 N. W. 697. And, if the instructions present the theory of the case as stated in the petition, the plaintiff has no cause of complaint. Maloney v. Railway, 95 Iowa, 255, 63 N. W. 690;Denton v. Railway, 52 Iowa, 161, 2 N. W. 1093, 35 Am. Rep. 263;Briscoe v. Reynolds, 51 Iowa, 673, 2 N. W. 529. Though it may not have been necessary to allege in the petition wherein defendant was negligent, plaintiff did so, and this limited the inquiry as to the grounds of negligence thus charged. The plaintiff, having asserted the particular acts or omissions which occasioned the unreasonable delay, ought not to be permitted to take exception because of defendant's omission to prove freedom from negligence in other respects. And this is the rule long since adopted by this court in cases arising under similar statutes. Section 2056 of the Code, as construed, declares a railroad company liable prima facie “for all damages sustained by any person on account of loss or of injury to his property occasioned by the operation of such railroad”; the burden being on the company to exonerate itself from the charge of negligence on proof of damages sustained in the manner mentioned, and this court held in Engle v. Railway, supra, that it is sufficient to allege the facts as indicated in the statute without specifying the respects wherein the company has been negligent in setting out the fire. But, when this is done, we have discovered no case holding that plaintiff may rely on other grounds of negligence than those alleged or that more is exacted from the defendant to entitle it to a verdict than a showing of freedom of negligence in the respects charged in the petition. In other words, the plaintiff cannot base his claim on one kind of negligence and recover on another, and the following decisions expressly so decide: Carter v. Railway, 65 Iowa, 287, 21 N. W. 607;Miller v. Railway, 66 Iowa, 364, 23 N. W. 756;Babcock v. Railway, 72 Iowa, 197, 28 N. W. 644, 33 N. W. 628. The allegations of the petition restrict the field of inquiry to the grounds of negligence stated therein, and...