Western Union Telegraph Co. v. Crawford
| Decision Date | 27 June 1911 |
| Citation | 116 P. 925,29 Okla. 143,1911 OK 243 |
| Parties | WESTERN UNION TELEGRAPH CO. v. CRAWFORD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Plaintiff's husband, for her use and benefit, January 25, 1908, delivered to the agent of the plaintiff in error at Greenwood, Ark., a telegram directed to his brother at Haileyville, Okl reading, "Josie will be there to-night." This message was sent pursuant to an arrangement previously entered into between them that the addressee would on notice meet the said Josie, who was the wife of the sender. The agent was informed of this arrangement and that plaintiff was about to be confined, and that he was sending her to his brother's house for that purpose; that it was a message of great importance, and should be rushed through; that Haileyville was a strange town to her, and that his wife would arrive between 11 and 12 o'clock that night, and that no hacks met the trains at that hour; and that she would have with her a heavy suit case and a two year old child. The train was belated, and plaintiff arrived between 2 and 3 o'clock in the morning. The telegram was not delivered and plaintiff finding herself alone accepted the assistance of an acquaintance for a part of the way in endeavoring to find her intended stopping place, and while walking, carrying the suit case and taking care of her child, she was ruptured internally in such a way as to cause labor pains, which continued for eight days, resulting in a dry birth with intense agony and suffering, and resulting in local impairment. Held, that the damages suffered were within the Hadley v. Baxendale rule, and were proximately caused by the neglect of the company to deliver the message and that a recovery of $2,000 was not excessive.
Where reliance is had to support either a claim or a defense upon the laws of some other state, the same must be pleaded and proved in order to be rendered available, and, where this is not done, the presumption obtains that they are the same as the laws of this state.
(Additional Syllabus by Editorial Staff.)
Under Const. art. 23, § 9, providing that any provision of a contract stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any liability, shall be void, provisions in a telegraph blank that the company shall not be liable where a claim for damages is not presented in writing within 60 days are void.
Error from District Court, Pittsburg County; Preslie B. Cole, Judge.
Action by Josie Crawford against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Affirmed.
George H. Fearons, Shartel, Keaton & Wells, and F. H. Kellogg, for plaintiff in error.
Guy L. Anderson and Rowe & Rowe, for defendant in error.
This case presents error from the district court of Pittsburg county. The action was begun by the defendant in error as plaintiff filing her petition therein on September 25, 1908, the purpose of which was to recover damages from the plaintiff in error, which are alleged to have grown out of its negligence in failing to deliver a certain telegram. From the averments of the petition it appears that on the 25th day of January, 1908, between the hours of 1 and 2 o'clock p. m. of the said day, the plaintiff's husband, for her use and benefit, delivered to the operator of the defendant for transmission the following telegram: that W. E. Crawford was the brother of the sender and Josie was his wife; that she was pregnant, and would be confined within about 10 days from the said date, and it was the purpose of the parties that she should be confined at the home of W. E. Crawford. At the time of the delivery of the said message to the agent, these facts were explained to the operator, and also that it was notice to the party to whom it was addressed to the end that he might meet the wife at the Rock Island depot, for the purpose of assisting her to his home in the said town, and that she would arrive there in the nighttime, and it was urgently necessary that the immediate delivery of said message should be made; that previous to the sending of the message full arrangements had been made with addressee to meet plaintiff on notice; that the message was received at the delivering office of the defendant at 8:45 p. m. and the train on which the wife had taken passage was scheduled to arrive at Haileyville on the night of the same day at about 11 o'clock p. m.; that the delivery of the said message was not made until the morning of January 28, 1908; that as a result of the negligence of the defendant in failing to deliver the message the said Josie Crawford was alone in a strange place with no one to assist her; that she was forced to carry a heavy suit case, and, with a child of about two years of age, to travel in the darkness of the night, through dense timber in search of the house of the said W. E. Crawford; that she became exhausted and was forced to seek shelter in the home of a strange woman for the remainder of the night and that from that time on, for the space of eight days and until she gave birth to a child, she suffered the most intense and excruciating physical pain and mental agony. To this petition the defendant answered denying that it received for transmission a message in the words and figures set out, and alleged that if it sent any it was written upon the printed form used by said defendant in its business, a copy of which was attached to its answer, and that under its terms a written contract was entered into between the sender of the message and the defendant, and that plaintiff did not perform the terms or conditions therein; that she did not present in writing any claim for damages within 60 days after the date of the acceptance of the message by the defendant for transmission. To this answer a general denial was filed, and on the case coming on for trial before a jury a verdict was rendered for plaintiff in the sum of $2,000. A motion for a new trial being filed and denied, the case has been regularly lodged in this court for review.
Counsel for defendant, plaintiff in error here, argue four separate propositions: First, that the damages claimed are not proximate; second, that the court erred in the admission and exclusion of evidence; third, error relating to instructions; and, fourth, prejudicial statements made by the court. These will be discussed in the order here stated.
The question first presented by counsel that the damages claimed are not proximate necessarily requires a review of the evidence in the case. It may be first stated that practically all of the evidence of material force and necessary for consideration is undisputed. The only dispute that is of any consequence is on the question of whether the message dictated by the husband of the plaintiff to the agent was written on a plain piece of paper or on one of the blanks furnished by the defendant. On this question, its agent testified that he had no recollection whatsoever of ever having seen the sender or of ever having sent the message, but that he never sent any message which he wrote except that it was written upon one of the company's blanks, and that if he took this message for transmission as stated by the sender, that he did so upon one of these blanks. For the purpose of this case his version of the matter will be taken as true, and it will be presumed it was written upon one of the company's blanks. The evidence necessary to be considered in order to determine the question of whether the damages were proximate and such as plaintiff was entitled to recover, is undisputed and is substantially as follows: T. H. Crawford, plaintiff's husband, testified that he lived at Greenwood, Ark., and that W. E. Crawford was his brother; that previous to January 25, 1908, he had made arrangements with the said brother on notice to meet his wife at Haileyville, Okl,; that she was pregnant, and that he desired to have her sent to his brother's house to be cared for during confinement; that he did not know the exact distance from the depot to his brother's house, but that it was quite a way out; that he prepaid the message, and explained to the operator at the time its purpose and object, telling him that he was sending his wife to Haileyville to his brother's to be confined; and that it was a message of great importance, and he wanted him to rush it through; that his wife would arrive that night in Haileyville sometime between 11 and 12 o'clock, and that he had made arrangements with his brother to meet her at the depot; that no hacks met the trains at that hour of the night; that she would have a heavy suit case to carry, and a two year old child to take care of. That she was going to practically a strange town, and that it was necessary for the message to be delivered.
W. E Crawford testified that he had lived at Haileyville since 1901; that he was well known to the people, to the railroad men and agents; that there was a telephone system in Haileyville, and that he was connected with it; that he received the telegram through the post office on January 28th being sent to him through the mail; that arrangements had been made with him to meet his brother's wife on notice at the depot; that he intended to meet her in a carriage and take her to his home, and that the reason he did not was because he did not receive the telegram; that the train on the night of the 25th was late, arriving about 3 o'clock a. m. of the 26th; that she arrived at his home on Sunday evening about dark, was suffering and continued to suffer for about eight days, when she gave birth to a child, and for quite awhile afterwards was delicate and...
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