Western Union Tel. Co. v. Newhouse

• Decision Date: 30 March 1893
• Citation: 6 Ind.App. 422,33 N.E. 800
• Parties: WESTERN UNION TEL. CO. v. NEWHOUSE.
• Court: Indiana Appellate Court

6 Ind.App. 422

33 N.E. 800

WESTERN UNION TEL. CO.

v.NEWHOUSE.

Appellate Court of Indiana.

March 30, 1893.

Appeal from superior court, Vigo county; S. B. Davis, Judge.

Action by Thomas J. Newhouse against the Western Union Telegraph Company for failure to deliver a telegraphic message. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

A. L. Mason and Butler, Snow & Butler, for appellant. Faris & Hamill and J. P. Stunkard, for appellee.

REINHARD, C. J.

The appellee in the court below recovered a judgment against the appellant for damages for failing to deliver a message. The jury, at the request of the parties, returned a special verdict. The appellant submitted special instructions to be given the jury upon the subject of the measure of damages. The instructions seem to state the propositions of law to which they were directed accurately, but they were refused by the court. It is quite true that where a special verdict is to be returned, no instructions upon the general principles of law need be given the jury, inasmuch as the court will apply the law to the facts found specially. Railway Co. v. Hart, 119 Ind. 273, 21 N. E. Rep. 753. But where, as in the present case, it is also the duty of the jury to assess damages, it is not only proper, but necessary, for the court to charge the jury as to the law governing the measure of damages in such cases. The following cases, cited by appellant's counsel, though perhaps not decisive of the point, are indicative of what is the duty of the court respecting instructions in cases where a special verdict is demanded: Bird v. Lanius, 7 Ind. 615, Railroad Co. v. Biven, 13 Ind. 263;Railway Co. v. Bush, 101 Ind. 582;Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. Rep. 594; Railway Co. v. Flanagan, 113 Ind. 488, 14 N. E. Rep. 370. We are of the opinion that it is erroneous for the court to refuse proper instructions as to the measure of damages where it is the duty of the jury to assess the damages, even though a special verdict is asked for, provided, of course, that the instructions are submitted in time, and all other legal rules relative to the submission of and request for such instructions are complied with.

It is insisted on the part of the appellee that the instructions requested and denied were not signed by counsel, and that hence no error could have been committed by the refusal to give them. We have made a careful examination of the record, and have failed to find that the instructions were signed by the attorneys for appellant, or were even submitted to the court before the beginning of the argument. The record recites that after the evidence was closed the appellant requested the court to charge the jury in writing, on the question of damages, and in particular to give each of the following instructions: (The instructions requested, properly numbered, are set forth, and at the close of the same follows this statement:) “That the court thereupon refused to give either of said instructions, to which ruling defendant, at the time, in open court, excepted, which exception was noted at the time on the margin of each of said instructions, dated and signed by the judge presiding.” These recitals are contained in the bill of exceptions, and we are not able to find any reference to these instructions in any other portion of the record. It does not appear that they were signed by the defendant's attorneys, or any one else, or that they were requested before the commencement of the argument. The decisions of the supreme court have firmly established the rule that, unless the statutory provisions in this respect are complied with, and such compliance is made to appear affirmatively by the record, the refusal to give instructions does not constitute reversible error. Rev. St. 1881, § 533; Beatty v. Brummett, 94 Ind. 76;Johnson v. Gwinn, 100 Ind. 466; Railroad Co. v. Hedges, 105 Ind. 398, 7 N. E. Rep. 801; Hutchinson v. Lemcke, 107 Ind. 121, 8 N. E. Rep. 71; Board v. Legg, 110 Ind. 479, 11 N. E. Rep. 612; Craig v. Frazier, 127 Ind. 286, 26 N. E. Rep. 842. There is no available error in the refusal of the instructions.

It is next insisted on behalf of appellant that it was not established, and does not appear from the special verdict, that the appellant was guilty of any negligence or failure to discharge its duty in the delivery of the message. The appellee had resided in the city of Terre Haute for seven years or more. It appears that his daughter, Laura Newhouse, who was in attendance at the sick bed of her grandmother, the mother of the appellee, at her residence, at or near Lawrence, Ind., undertook to send a message to her father from Lawrence to Terre Haute, informing him of the condition of his mother, so that he might have time to come to Lawrence and see her before her death, she being then in a dying condition. The message was given to the appellant's telegraph operator at Lawrence, by Laura Newhouse, on the 24th day of July, 1890, at about 11 o'clock A. M., for transmission to the appellee at Terre Haute, Ind., and was in the following words and figures: “Lawrence, Indiana, July 24th, 1890. To Thomas J. Newhouse, Vandalia Freight Yards, Terre Haute, Indiana: Come at once, if you see your mother alive. Laura Newhouse.” The operator agreed to send the message at once, and collected from Laura Newhouse the customary charge of 25 cents for the transmission of the same. The telegram was received at Terre Haute on the same day, at about 11:45 o'clock A. M. during the usual business hours of the company, and between 1 and 1:30 o'clock P. M. of that day was sent by a messenger to the Vandalia freight-yard office, which was within two blocks of No. 507 North Twelfth street, where appellee was then and had been for seven months residing, and which was within one mile of the appellant's office where the dispatch had been received. The messenger boy found one Albert Andrews, assistant yard master of the Vandalia freight yards in charge of said yards, the principal yard master being absent. Upon inquiring of Andrews, the messenger was informed by him that no such person as Thomas J. Newhouse was employed or stayed in said yards, and that he (Andrews) did not then know any one with that name, and that no such person was there. In the presence and hearing of the messenger, Andrews inquired of three other employes in the yards, who were then in the office, as to whether or not they knew of such a person as Thomas J. Newhouse, and each of them said in the messenger's presence and hearing that he did not know of any one bearing that name. The messenger then handed the telegram to Andrews, and asked him to receipt for the same in the delivery receipt book, who, after some hesitation, received the message, and receipted for it, and said he would endeavor to find Newhouse, and deliver it to him. Newhouse had not been in the habit of receiving messages or other communications at said office, and had never been employed about the freight yards. The message left with Andrews was never delivered to the appellee, although Andrews made some efforts to send it to him, and the appellee received no information thereof until the 3d day of August, 1890, when he went to the appellant'soffice at Terre Haute, and was given a copy of it. The appellant's agents and employes never made any inquiry at Terre Haute concerning the appellee's whereabouts, and made no efforts to deliver the message other than those indicated. On the day the dispatch was sent the appellee was at his place of residence in Terre Haute, and could have been easily found there by the messenger. The address of the appellee was then contained in a book containing the addresses of the citizens of Terre Haute at the post office in that city, and was also in the city directory of Terre Haute, and the appellant had a copy of said directory in its office in that city. To reach the town of Lawrence from Terre Haute by rail requires about 2 1/2 hours, and had appellee received the message promptly, he would have had ample time in which to go and see his mother before her death. She died at about 12 o'clock noon on July 31, 1890, and appellee was not able to be with her until after her death, and by reason of his failure to be in attendance at her bedside in the last days of her illness and during the last hours of her life, and that she died without his seeing her during her last illness, the appellee suffered great sorrow, anxiety, and distress of mind.

The foregoing facts appear, among others, in the special verdict, and give the basis of the appellee's right to recover. The controlling question is whether they show a liability on the part of appellant for the want of proper diligence in delivering the message. Was the appellant justified, under the circumstances, in leaving the telegram at the office of the freight yards, or was it bound to go further, and look for the appellee in other parts of the city? When the messenger was informed that no such person as Thomas J. Newhouse had been or was then employed about the yards, and that no such person was known there, was it the duty of the company to make further search for Newhouse, and ascertain, if possible, whether or not he had a residence in the city, and, if so, deliver the message there? There was some testimony to the effect that the direction of the message to the freight yards was inserted at the instigation of the operator at Lawrence, but there is no finding upon this subject by the jury, nor is there any averment to that effect in the complaint. We must therefore accept the view urged by appellant's counsel that the message was written and sent, inclusive of the direction or address, as prepared by the sender, or by the operator for her and under her directions. It is doubtless the duty of a telegraph company which undertakes to transmit a message over its lines from one of its stations to another to use proper diligence in delivering the...