W. Union Tel. Co. v. Church

• Decision Date: 21 May 1902
• Parties: WESTERN UNION TEL. CO. v. CHURCH.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 22

90 N.W. 878

WESTERN UNION TEL. CO.

v.CHURCH.

Supreme Court of Nebraska.

May 21, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Jefferson county; Letton, Judge.

“Not to be officially reported.”

Action by Eliza Church against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Affirmed.W. W. Morsman and W. P. Freeman, for plaintiff in error.

John Heasty and W. H. Barnes, for defendant in error.

KIRKPATRICK, C.

This is an action brought in the district court of Jefferson county by Eliza Church, defendant in error, against the Western Union Telegraph Company, plaintiff in error, to recover the sum of $1,990, as damages claimed to have been sustained on account of the failure of the telegraph company promptly to deliver a telegram which had been sent to a physician in the city of Fairbury to come to her home at once. The petition sets out that on the 28th day of January, 1898, she delivered to the telegraph company a message as follows: “Dr. Andrews: Come to L. C. Church's at once. L. C. Church;” that the telegraph company received the message at the village of Thompson, and undertook to deliver the same promptly to Dr. Andrews, at the city of Fairbury, which was distant seven or eight miles; that the company was paid for transmitting the message; that it was delivered to the company for transmission about the hour of 6 o'clock p. m., and that it was not delivered to Dr. Andrews until about the hour of 9 o'clock p. m. of the same day; that Dr. Andrews was a skillful and competent physician and surgeon, and that the defendant in error had previously arranged with him to attend her during her confinement, which was expected to occur soon; that he had agreed to come immediately upon receiving notice; that, upon receipt of the telegram, Dr. Andrews started immediately for the residence of defendant in error, arriving there about 10 o'clock p. m., and after the birth of the child, which died during birth; that, on account of the negligence and carelessness of the telegraph company, she was prevented from having the care, attendance, and assistance of a physician, and that her confinement was unduly prolonged, and that she suffered greatly in body and mind on account of not having the care and assistance of a physician; and that the period of labor was greatly lengthened, aggravated, and intensified,--all to her damage in the sum claimed. To this petition, plaintiff in error filed an answer, admitting its corporate character, and that it owned and operated a telegraph wire between the village of Thompson and the city of Fairbury, and that it held itself out to the public as a common carrier of information, and further denied each and every allegation contained in the petition, together with an allegation that plaintiff's petition did not state facts sufficient to entitle her to any relief.

Trial was had to a jury, which resulted in a verdict and judgment for defendant in error in the sum of $950, to reverse which the cause is brought to this court. Four assignments of error are argued in briefs of counsel for plaintiff in error, and they will be considered in their order: First. That the court erred in permitting Dr. Andrews, over objections, to testify that other telegrams had been sent to him which the company had delayed in delivering; that by reason of such delay he had lost money, and that he had informed the agent of plaintiff in error that he wanted messages addressed to him delivered to him at once, and that if they continued to hold messages they would be responsible for somebody's death, and that witness was losing money in having the telegraph company hold messages until they could find some person to deliver them to him. Second. That the court erred in permitting Dr. Andrews, over objection, to testify that if he had arrived at the residence of defendant in error at about 8 o'clock in the evening, and found her in confinement, and all of the child born except the head and one arm, he could, in all probability, have completed the delivery in three or four minutes thereafter. Third. The court erred in permitting the jury to find more than nominal damages. Fourth. That the verdict is excessive.

The facts, as disclosed by the record, briefly stated, are as follows: Some time prior to January 28, 1898, defendant in error, expecting confinement soon thereafter, talked to Dr. Andrews about attending upon her at that time, and he agreed to come upon notice. On January 28, 1898, defendant in error caused to be delivered to the agent of plaintiff in error at its office in the village of Thompson the message hereinbefore set out. The message was forwarded by the company's agent at Thompson within a very few minutes after its receipt from the sender, and was received by the company's agent at Fairbury. Dr. Andrews was well known in Fairbury as a practicing physician and surgeon, and both his office and residence were within the free-delivery limit established by the company. The message was not delivered to him until about 8:45 p. m. He immediately hitched his horse to his buggy and started for the residence of defendant in error, distant about seven miles, arriving there about 10 o'clock. It appears from the evidence that defendant in error was taken with premonitory labor pains about 3 o'clock in the afternoon. Soon afterwards she sent a young woman to the house of a neighbor woman, and then to the telegraph office with the message. Between 6 and 7 o'clock her pains became more violent and frequent, and about 8:30 the child was delivered. The birth was an instance of what is commonly called “foot presentation.” After all of the body except the head and one arm was born, birth was delayed for about 30 minutes, and it seems that during this time the life of the child became extinct. At the time the doctor arrived (about 10 o'clock), defendant in error was in bed, resting easily. He left a prescription, and returned home. Defendant in error suffered intensely during the last half hour of her labor.

Dr. Andrews was called as a witness for defendant in error, and the following testimony by him is quoted from the record, as being the basis of the first assignment of error urged for consideration: “Now, you may state whether prior to that time you had received telegrams which had been transmitted to you from the defendant company? A. Yes, sir. Q. Many times? A. Yes, sir. Q. Have they been delivered to you by the defendant at your office prior to that? A. Sometimes at the office, and sometimes at my residence. Q. You may state whether prior to that time you had had any talk with the defendant company with reference to delivering telegrams to you? (Objected to as immaterial and incompetent. Overruled. Exception.) A. I had explained to them in regard to the delay in the different telegrams sent to me, and I lost money by that. Q. (By attorney for defendant company.) Explained to whom? A. To Mr. Catlin. There was a telegram sent to me about three weeks, I think, before this time, from Reynolds. It was received here at 6 o'clock in the evening, and delivered to me at 5 o'clock the next day. (Objected to as not responsive to the question and immaterial. Sustained.) Q. State what you said to him at that time about telegrams sent to you, and what should be done with them? (Objected to as immaterial. Overruled. Exception.) A. I told him I wanted telegrams sent to me immediately. I didn't want them to keep them at the office; that, if they continued that, they would be responsible for somebody's death, and not only was that true, but I was losing money by telegrams being held until they could find somebody to bring them to me.” The testimony to which more particularly objection is urged in the briefs of counsel for plaintiff in error is that given to the last question quoted above. The testimony elicited by the questions immediately preceding, while it may have been objectionable, could not, we think, have resulted in prejudice to plaintiff in error. Regarding the last question, it may be said that no objection was made to its form; the only objection being that it was immaterial. Two inquiries were made in the question: First, “State what you said to him at that time about telegrams sent to you?” and, second, “What should be done with them?” The first portion of the question would likely call for immaterial testimony, and was objectionable; but the second portion called for any directions which the witness may have left regarding the delivery of messages to him,--whether they were to be delivered at his office or residence, between what hours at either place, or any such instruction as may have been given. If proper objection had been made to the form of the question, no doubt the court would have required the question to be separated, and would have excluded that portion which had no bearing upon the matter in controversy. The rule is elementary, and based upon sound reason, that objection made to a question is properly overruled unless the objection is good as against the entire question. “Where part of the testimony objected to as a whole is admissible, it is not error to overrule the objection.” Schulze v. Jalonick (Tex. Civ. App.) 44 S. W. 580. After the witness had answered the question, plaintiff in error moved to strike such portion as was not responsive. This motion was sustained by the trial court. Plaintiff in error did not ask to have any other portion stricken out. The trial court struck out that part of the answer to which plaintiff in error directed his motion, and we are of the opinion that there was no error of the trial court in this regard of which plaintiff in error can complain. The first contention, therefore, must be decided adversely to plaintiff in error.

After plaintiff in error had rested its case, defendant in error called Dr. Andrews for further examination in chief. He then testified as follows: “Q. ...