148 Iowa 77 | Iowa | 1910
The defendant owns and operates the telephone system in Davenport. The plaintiff was a subscriber and patron. He conducted a wooden shoe factory on the lots where his residence was located. Shortly after 1: 30 o’clock in the morning of August 2, 1905, his wife heard a crackling sound, and, upon looking out, noticed a fire in the factory. She wakened plaintiff, who immediately went to the telephone, and took down the receiver for the purpose of giving a fire alarm. Ordinarily, removing the receiver signaled on the switch board at the central office to the employees, who then connected the line with telephone of the person with whom communication is desired. No one responded, though he called for “central” and “worked” the receiver for, as he testified, nine or ten minutes. He then handed the receiver to his wife, who got into communication with the central office in one or two minutes. Upon turning the receiver over to his wife, plaintiff went to the factory, and from there started to the fire department, which had a station about four
Sec. 2163. The proprietor of a telegraph or telephone line is liable for all mistakes in transmitting or receiving messages made by any person in his employment, or for any unreasonable delay in their transmission or delivery, and for all damages resulting from failure to perform the foregoing or any other duty required by
Sec. 2164. In an action against any telegraph or telephone company for damages caused by erroneous transmission of a message, negligence on the part of the telegraph or telephone company shall be presumed upon proof of erronous transmission or of unreasonable delay in delivery and the burden of proof that such error or delay was not due to negligence upon its part shall rest upon such company; but 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 time cause of action accrues.
Of course, the method of communication over a telephone differs from that by telegraph. Ordinarily in the former the company merely puts the sender in connection by wire with the sendee and the message is transmitted by word of mouth. The delay in the transmission or delivery contemplated by the statute is that of not furnishing the proper connection within a reasonable time as well as in otherwise transmitting messages so that upon a showing of an unreasonable delay by plaintiff it devolved upon defendant to establish by a preponderance of the evidence that such delay was not due to negligence on its part. Had the petition merely alleged unreasonable delay without describing the particular acts of negligence occasioning it or have alleged negligence generally, the ruling of the court might have been'upheld. Engle v. Railway, 77 Iowa, 661. Ordinarily the defendant is in court to answer the matters averred in the petition only. Heald v. Telegraph Co., 129 Iowa, 326; Edgerly v. Insurance Co., 43 Iowa, 587; Wirstlin v. Railway, 124 Iowa, 170. And, if the instructions present the theory of the case as stated in the petition, the plaintiff has no cause of complaint. Maloney v. Railway, 95 Iowa, 255; Denton v. Railway, 52 Iowa, 161; Briscoe v. Reynolds, 51 Iowa, 673. Though it may not have been necessary to allege
Moreover, how far the fire had spread at the time the firemen would have been likely to have reached the scene had the connection been promptly made is left by the evidence a matter of speculation merely. And then there
Reversed on defendant’s appeal. Affirmed on plaintiff’s appeal.