25 S.D. 319 | S.D. | 1910
Thi-s is an action to recover for injuries alleged to have resulted from defendant’s failure to deliver an accepted message. Tt was commenced before a justice of the peace, appealed to the circuit court, and there tried de novo. At the close of -all the evidence, the defendant moved the court “to instruct the jury to- find for the -plaintiff far the amount of $1,30, with costs and disbursements of the action, and the accrued interest thereon, as the plaintiff had not proven his right to recover anything in excess of that amount.” At the same time the plain? ■tiff moved the count to direct a verdict in his favor for $100, the amount -demanded by the complaint. Defendant’s motion was denied, plaintiff’-s granted, judgment accordingly entered, defend- and’s application for a new tidal denied, -and this appeal taken from the judgment and -order refusing a new trial.
The complaint contains appropriate -allegations concerning defendant’s corporate existence and business, the filing of the message, its contents, failure to transmit and deliver, circumstances showing extent of .plaintiff’s injury, a -disclaimer of damages iri excess of $100, and a demand for judgment for that am-ounit, together with costs and -disdursements. It also fa alleged therein that
It is contended plaintiff was entitled to recover only the price of transmission, because “the telegram was not a repeated message.” The message was accepted at Milbank, in this state, January 19, 1904. It was written on one of defendant’s blanks, on the face of which these words were plainly printed: “Send the following message subject .to the terms on back hereof, which are hereby agreed to.” It was addressed, “To' Rev. T. A. Stamp, or Mrs. O. D. Peck, Kalama, Wash.,” signed by the plaintiff and read as follows: “Lydia coming, if not too late, answer where to go. Mrs. Peck, please forward if gone.” The terms on the back of the message applicable to -the contention under discussion are as follows: “’To guard against -mistakes or delays, the sender of a- message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable fob mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery of any repeated message, beyond fifty times the sum received for sending the same, unless specifically insured, nor in any case for delays arising from unavoidable interruption in the
The contention that “the court erred in making an assessment of respondent’-s damages in the arbitrary sum of $100” is not tenable if ithe detriment suffered by the plaintiff was within the proper measure of damages. The evidence on this branch of the ca’se was received without objection. It related to the expense of a journey by plaintiff’s wife.to and from the Pacific Coast; the railroad fare from Milbank to Kalama and return alone being more than the amount of the verdict — 'the amount demanded by the complaint. It is further contended that the verdict should not have exceeded the price paid for sending the message, for the reason that the detriment suffered by the plaintiff was not the proximate result of defendant’s negligence, and cannot be presumed to have been contemplated by the parties at the time the message was accepted. Though this contention does not appear to have -been advanced in the court below, either by an objection to plaintiff’s evidence or as a ground for granting defendant’s motion to direct the verdict, it will receive attention on the assumption, ■ that it involves the sufficiency of the evidence to sustain the verdict that was directed. Every person whose message is refused or postponed contrary to the provisions of the chapter of the Civil Code relating to common carriers is entitled to¡ receive from the carrier his actual damages and $50 in addition thereto. Civ. Code, § 1606. For the breach of an obligation not arising from contract, -the measure of damages, except where otherwise expressly provided by the Civil Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. Id. § 2312. I-Ience the rule -stated in appellant’s brief is not the one applicable to this case. And, if it were, defendant’s contention would not be tenable. Plaintiff testified without objection that he told defendant’s agent