18 Wash. 260 | Wash. | 1897
The opinion of the court was delivered by
Some time in the year 1895 the respondent in this action brought an action against the Union Mutual Life Insurance Company to recover the amount stipulated in a certain insurance policy issued by that company upon the life of her husband. One of the grounds upon which the claim was resisted was that the husband of the plaintiff was not dead. The trial resulted in a verdict for the defendant, and a judgment followed, which was afterwards affirmed by this court. During the progress of that case a telephone communication had been sent by the attorney for the plaintiff (respondent here) to her son in Seattle to come down at once and testify in the case. The message was not delivered by the telephone company (the appellant in this case). It was desirable, in the opinion of the attorneys for the plaintiff in that case, that the witness Martin, who was telephoned for, should testify in regard to the circumstances under which the deceased, his father, had left, as it was thought that he could connect deceased with a certain boat and articles in the boat which were afterwards found. This action is now brought by the said Johanna O. Martin, respondent, against the said Sunset Telephone and Telegraph Company to recover the sum of $1,250 damages, which the complaint alleges to have been the. damages incurred by reason of the failure of the suit which we have just described, and for $1.25 paid for sending the message over the appellant’s telephone lines from Seattle to Tacoma. The
This, it seems to us, is a novel way of proving what the testimony in the other case was. If the same witnesses had been introduced in this case and had testified as they testified in the former case, and then the additional testimony of the witness Martin had been introduced, there might have been some reason urged why the jury in this case could determine whether the failure of the jury in the former case to find a verdict could be attributed to the lack of the testimony of the witness Martin. But certainly the jury in this case could not base its opinion of the weight of testimony in the former case upon the opinion of the attorney in the casa who had heard the same; and even he testifies he was not at the trial all the time. In answer to the question, “ Were you there during all of the trial?” the answer’ was, “ I was there during most all of the trial.”
“ Q.—You do not know whether you heard all the principal testimony or not?
“ A.—I heard most of what I think is the principal testimony.
“ Q.—"Would you undertake to say that those same facts would take hold of those twelve men who acted as the jurors in that case the same as they did of your mind?
“ A.—Perhaps so.
*265 “ Q.—Do you think—do you now undertake to tell this jury that what would convince you would convince the twelve men who sat in that case?
“ A.—Perhaps not.
Thus it will he seen that the jury really had nothing before them upon which to base a just or legal conclusion, that if the testimony which was sought and not obtained from young Martin had been before the former jury, it would have found a verdict for the plaintiff in that case. The former jury saw the witnesses on the stand, saw their demeanor, and noticed whether they appeared interested or prejudiced in the case. The jury which tried this case had none of these advantages, but must base its judgment entirely upon the opinion of some one else who heard the ease. We do not think that a practice of this kind is recognized by the law. The witness Martin was also, over the objections of the appellant, allowed to testify as to the contents of a certain letter which he had seen and which had been written by a Miss Penquist to his mother. This was the purest hearsay testimony. Certainly a witness would not have been allowed under any rule of law to have related what Miss Penquist said to him in relation to the circumstance related in the letter, and the fact that the relation was through the means of a letter instead of by word of mouth does not change the principle in any degree. But outside of these questions, no case has been presented to us by the respondent, nor have we been able to find any, which would sustain an action for damages so remote as the damages Avhich are sought to be recovered here. This is an action against a third person avIio was not a party to the original action. Po judgment has been obtained in this case. Pot only has no judgment been obtained, but in the action in Avhich she sought to obtain a judgment against the insurance company and upon which action she bases this claim
In the report of this court of the case of Martin v. Union Mutual Life Ins. Co., 13 Wash. 275 (43 Pac. 53), it appears that the appellant in that case might have made an application to the court for a continuance on the ground that the witness could not be obtained. But the plaintiff introduced no such evidence, and knowing of her inability to obtain this testimony, rested; and after the defendant interposed a motion for a non-suit, the plaintiff moved the court to open the case so that she might, the next morning, have the testimony of her son made a part of her affirmative defense. The court denied the motion and upon its action in so doing Mrs. Martin founded her allegation of error. And this court, in reviewing that case, said:
“Applications of this kind are addressed to the sound discretion of the trial court, and its decision will not be interfered with in this court unless the circumstances clearly show an abuse of such discretion. If the application in this case had been made before plaintiff rested, and a showing made as to the reason why the son was not there and that he would in all probability be there -on the morning of the next day, 'it would probably have been the duty of the court to have continued the trial so as to give the plaintiff an opportunity to put him upon the stand. But when the plaintiff, having full knowledge as to the nature of the testimony which it was expected to elicit from the absent witness, rested her case without any suggestion to the court as to*267 the absence of snch witness and the efforts which she had made to procure his attendance, and asked for relief only after the sufficiency of her testimony in chief to make out a prima facie case had been challenged by the motion for a non-suit interposed by the defendant, the case is brought Avithin the rule which allows the trial court discretion in determining when the regular course of trial shall be departed from, and its ruling upon such question will not be disturbed here.”
"We make this citation simply for the purpose of shoiving the impracticability of the rule contended for by the respondent, for, from the very nature of a law suit, there are many things other than the naked proof in a case which influence the verdict and the judgment. So that so far as the question of damages on this branch of the case is concerned it must fail.
There is, however, in the complaint, a demand for $1.25, the toll paid for the message which was sent. It is the contention of the respondent that the provision in relation to the presentation of the claim within thirty days, which is a provision printed in fine type upon the top of the message blanks, Aras violated; but as this is a matter which was not raised by the pleadings, even if it would be construed as a binding contract, and as testimonv further shows that the company defended on other grounds, we do not think that this objection is meritorious. The message was delivered to the accredited agents of the appellant in its office in Tacoma, and was transmitted by them to its office in Seattle. It is addressed to ~W. Martin, and, as nearly as can be deciphered, in care of Lester Posten. There is some little conflict in the testimony between the telephone girl and the attorney who sent the message as to what the address of the Avitness was, and as to the Vestra Posten being a Swedish newspaper published in Seattle. It however appears that the officers of the .telephone company at Seattle delivered
Without specially reviewing the authorities on this proposition, we are satisfied that the company was negligent in not delivering this message and that the respondent is entitled to the amount paid for the message, which was not delivered, or which was not delivered in time, for it was actually delivered some two days after its reception in Tacoma. The errors which the appellant discussed in its brief are none of them errors which would invalidate the judgment for this item.
The judgment will therefore be reversed and remanded with instructions to enter judgment for the respondent for the sum of ,$1.25. Appellant will recover the costs of this appeal.
Scott, O. J., and Gobdoit and Reavis, JJ., concur.