141 Iowa 32 | Iowa | 1908
The petition is in two counts. In the first plaintiff asks damages for pain and anguish resulting from the failure of defendant to deliver a telegram sent by his plaintiff’s son from Wausa, Neb., announcing the death of the son’s wife; and, in the second, for pain and anguish suffered by the son resulting from the nondelivery of the message to plaintiff, the said claim having been assigned to plaintiff. It was alleged in each count that defendant, when it received the message, was informed that it related to the death of the son’s wife. The message read as follows: “To James Foreman, Independence, Iowa. Sena died at 2:30'this p. m. W. J. Foreman. September 22nd, 1906” — and the charge upon the same was $1, which was paid by the son, W. J. Foreman. At the conclusion of plaintiff’s testimony, the trial court directed a verdict- for plaintiff in the sum of $1, the amount paid for sending the message. The motion was sustained on the theory that the failure to deliver the message was not the proximate cause of the pain and ■ suffering; that the relationship of the parties
It is contended for appellee that, as there was no blood relationship between the plaintiff and his daughter-in-law, no presumption of pain and suffering obtains, and that it was incumbent on plaintiff to show by allegation and proof that such relations, in fact, existed between them as that pain and suffering in fact arose out of the nondelivery of the message, and that defendant had knowledge thereof. As to the second count of the petition, it is contended that, as the son did not notify the telegraph company, when he filed the message that he would suffer if his father were prevented from attending the funeral, no damages are recoverable beyond the nominal sum paid for the message. It is further argued that the testimony shows that the son’s suffering, if any, was due to the failure, not only of the father to attend the funeral of his wife, but also to his sisters’ absence from the funeral, and that the son did not distinguish the suffering sustained by reason of the failure of the father to attend from that of his anguish over the nonappearance of his sisters. The negligence of the defendant in failing to make delivery of the telegram is practically conceded, and our discussion will be confined to the propositions above stated.
III. One ruling on the admission of testimony is complained of. , If there be error here, it was afterward cured, for the same matter was proved by another witness.
'For the errors pointed out, the judgment must be, and it is, reversed.