146 Iowa 743 | Iowa | 1910
On February 5, 1907, one George Seddon delivered to the defendant at Mystic, Iowa, the following prepaid telegram: “2-5-1907. Mystic, Iowa. To Ralph Seddon, Eutledge, Iowa. Ralph Sims is dead. Funeral here tomorrow. Tell James Seddon. (Signed) George Seddon.” This message was received by the defendant’s operator at Eutledge at 1:50 p. m. on that day. Eutledge is a small station in the immediate vicinity of a coal mining camp, and its only business is such as is incidental to sucb camp. Plaintiff was a coal miner, but had been confined to his borne with sickness for some weeks, and was so confined on the date in question. The defendant’s operator carried the message to tbe coal office, and made inquiry concerning the sendee, but failed to elicit any information. He “stuck it in a grating at the office” and left it there. The only person in the office was the bookkeeper, Mary Eobinson, and it is in dispute in the evidence whether the operator called her attention to the fact that he was leaving the message or not. He testified as a witness that he spoke to her about it, and she testified that she beard no sucb statement, and did not know that tbe message was left there. - It was discovered about one o’clock on the next day by one Erskine who inclosed it in an envelope addressed to James Seddon, a son of the plaintiff. James received it tbe same 'afternoon, and carried it to tbe plaintiff who lived a quarter of a mile away. It is claimed by tbe plaintiff that tbe failure to deliver tbe telegram to him on tbe afternoon of its receipt prevented bis attending the funeral which occurred at Mystic forty miles away, and that he suffered great mental pain because thereof!
The question presented for our consideration is whether this state of facts is a sufficient compliance with section 2164 which provides that “no action for the recovery of such damages shall be maintained unless a claim therefor is presented in writing to such company, officer, or agent thereof within sixty days from the time the cause of action accrues.” It is 'the contention of appellant that no action could be brought until after the presentation of the claim in the manner above provided. This argument is based on the analogy of other .statutes and our holdings thereon. One of such statutes is .section 3528 of the Code which provides that no action on an unliquidated demand against a county .shall be “brought until the same has been presented to such board and payment demanded and refused or ignored.” We have held that the presentation of a demand under this section is a condition precedent to the right to maintain suit against the county. Sections' 1050 and 1051, which relate to suits against special charter cities, require a written verified statement of an alleged injury to be presented and filed with the city recorder within thirty days after the injury, and forbids suit to be brought until thirty days after such filing. We have held that the presentation and filing of such statement thirty days before suit brought was a condition precedent to the bringing of the same. Ulbrecht v. Keokuk, 124 Iowa, 1; Kenyon v. Cedar Rapids, 124 Iowa, 196.
It is urged by appellant that the presentation of such a claim is intended to perform the function of a demand and to give to the defendant time for investigation before it be subjected to the cost of an action. This argument adds something to the terms of the statute. The presentation of such a claim would undoubtedly operate as a sufficient demand. But the statute does not provide for time to be allowed for investigation before the commencement of the suit. And if we should grant that a demand upon the defendant was due from the plaintiff before the. commencement of the suit, the only purpose of such a demand would be to enable the defendant to discharge a conceded liability without the burden of costs. Such a question can become material only where the defendant does concede .his liability and is defending only
IY. It is next urged that “the evidence fails to show that defendant was guilty of negligence as charged in the petition.” In support of this point it is first argued that the petition urged “failure” to deliver and not a “delay” in delivery. We have already discussed this question.
The verdict of $500 was reduced by the trial court ' to $300, and no complaint is made of the size of the reduced verdict if the plaintiff was entitled to any verdict at all. If the trial court in the exercise of its discretion had set the verdict aside and granted a new trial on this ground, we should have 'had no hesitancy in sus
We find no error, and the judgment below must therefore be affirmed.