28 Ind. App. 420 | Ind. Ct. App. | 1902
This action was brought in the Monroe Circuit Court to recover damages charged to have been sustained by the appellee’s decedent by reason of the appellant’s delay of twenty-four hours in delivering a telegraphic message to him. The cause was tried by a jury, and a judgment was rendered upon the verdict against the appellant for $700. From this judgment this appeal was taken. The first error assigned is that the complaint does not state facts sufficient to constitute a cause of action.
The substance of the complaint is: That the defendant was conducting a general telegraph business between Wheeling, Missouri, and Bloomington, Indiana; that on January 7, 1898, one Thomas Adams, deposited with the defendant’s agent at Wheeling, for transmission to Ancil Adams, the plaintiff, the following message: “Wheeling Mo., Jan. 7, 1898. Ancil Adams, Bloomington, Ind. Riley very low. Come at once. Deliver. Special messenger guaranteed. Thos. Adams”. Two dollars and fifty cents was deposited as a guaranty of the cost of transmission and delivery; the telegram was not transmitted with impartiality and in good faith, and without delay, and in the order of time in which it was received, but was delayed twenty-four hours at Bloomington, Indiana; Riley was the father of Thomas Adams,
The usual rule for the ascertainment of damages to plaintiff in an action for delay in transmitting his telegraphic dispatch is stated to be such as naturally arise from a breach of the contract, and such as may reasonably be supposed to have been in the contemplation -of both parties at the time they made the contract as to the probable result of the breach of it. Western Union Tel. Co. v. Henley, 23 Ind. App. 14; Western Union Tel. Co. v. Bryant, 17 Ind. App. 70.
The courts which hold that damages for mental suffering alone may be recovered base the recovery upon the fact that the language of the message gives such notice to the company that the message concerns such event or events as
Counsel for appellee have moved to dismiss this appeal, and strike the case from the docket of the Appellate Court. The facts relied upon as grounds for dismissal are as follows : Judgment was obtained in favor of Ancil Adams in the Monroe Circuit Court, November, 1899; Adams in whose favor the judgment was rendered died in February, 1900; the transcript was filed in this court in September, 1900; so that it appears that Adams, in whose favor the judgment was rendered, died three months after its rendition, and the transcript on appeal was filed six months after his death.
Section 644, Burns 1901, provides that appeals may be taken from the circuit court and superior court to the Supreme Court by either party from all final judgments. By §645, Burns 1901, one against whom a judgment has been rendered may appeal from such judgment at any time within one year from its rendition. Section 648, supra, reads: “In case of the death of any or all the parties to a
The general policy of the law would seem to make it the duty of the court to construe the sections of the statute set out as directory of the method to be pursued in the prosectition of appeals, rather than a limitation or abridgement of the substantial right to appeal at all in such cases. In the ease of Stout v. Indianapolis, etc., R. Co., 41 Ind. 149, the original plaintiff, Peter Stout, recovered a verdict and judgment in the Marion Superior Court. On appeal to general term the judgment was reversed, and the cause was remanded to special term for a new trial. Stout appealed from the judgment of general term to the Supreme Court, and died, the appeal being prosecuted by his administrator. It was held that the judgment of reversal left the party without a judgment, and simply with an action pending; and that as the cause of action did not survive, the power to prosecute the appeal, together with the cause of action itself, died with the plaintiff. The Stout case was distinguished by the Supreme Court from Hilker v. Kelly, 130 Ind. 356, 15 L. R. A. 622. On the first day of May, 1888, the appellee Kelly recovered a verdict in the Marion Superior Court against Henry Hilker, in an action for per
In Diefendorf v. House, 9 How. Pr. (N. Y.) 243, the court said that the practice of entering a judgment, nunc pro tunc, as of a term prior to the death of the party, such case depends upon the rule .of common law, “that when parties are hung up by act of law, neither of them loses his right, but eventually judgment is entered up, nunc pro tunc, as if the party were still alive.
In Shafer v. Shafer, 30 Mich. 163, the appeal was from a judgment granting a divorce to the appellee. Within a short time after the decree the party securing the divorce died. After his death, but within the period allowed by 'statute for appeals in chancery, the defendant took an appeal to the supreme court, notices being served on the solicitor of record for the complainant in the court below, and on the administrator of the deceased complainant’s estate.
An act concerning the survival of claims for personal injuries, Acts of 1897, p. 227, reads as follows: “That whoever has a claim for personal injuries and obtains judgment for the same against any person, company or corporation in any trial court of this State, and from which judgment any person, company or corporation, against whom or which the same was obtained, shall appeal to the Supreme or Appellate Court of the State, and such judgment be reversed by such Supreme or Appellate Court, and a new trial be granted to appellant thereon; and if the person who obtained such judgment should die, pending such appeal, or before a new trial after such reversal can be had, such claim for personal injuries shall survive and may be prosecuted by the personal representatives of such decedent, as other claims are prosecuted for and on behalf of decedents’ estates”.
It is evident that by “pending appeal” is meant from the time of the announcement by the defeated party of his intention to appeal. Otherwise if the plaintiff dies after the judgment, and before the transcript is filed, his cause of action dies with him, notwithstanding this section of the statute which obviously intended to provide against such contingency. If such is not the proper construction of the act it must be held to discriminate in favor of certain persons who may die at one time, as against those who may die at another time. Such an intention can not be attributed to the legislature. Therefore, since that body has made provisions for the survival of the cause of action after reversal in such cases, in doing so it has given expression to the legislative construction of §§648, 649 Burns 1901. By use of the words “appeal” and “reversal” we may conclude
The cases cited by counsel for appellee are distinguishable from the case at bar. In Moore v. Slack, 140 Ind. 38, the appeal was taken in the name of a deceased person who died after judgment, and before appeal, instead of in the name of the personal representative of the decedent. 'The court dismissed the appeal on the ground that an appeal in the name of a deceased person is a nullity as the court could acquire no jurisdiction over the appellant in such a case. The Moore case was decided upon the authority of Taylor v. Elliott, 53 Ind. 441, and Branham v. Johnson, 62 Ind. 259, which are of like tenor and effect. In the later case of Dolle v. Brown, 20 Ind. App. 12, the appeal was dismissed because the appellant attempted to prosecute his appeal against a dead appellee, who had died after judgment and before the appeal. There was no substitution before appeal of the proper person, the executor, and no notice was served upon him. It was not the purpose by -these decisions to deny the right of appeal given by the general provisions of the statute for a reason for which an appellant was in no wise responsible.
The conclusion from each of these cases is that to constit\ite a valid appeal, where death occurs after judgment and before the transcript is filed, it is necessary for the appellant to substitute in the assignment of errors the name of the personal representatives of the deceased judgment holder, and to have notice of the appeal served upon the substituted party. This practice was followed in the present appeal. The name of “Mary E. Adams, administratrix of the estate of Ancil Adams, deceased”, appears as appellee in the assignment of errors^ and the fact is noted of his
The judgment is reversed, with instructions to sustain appellant’s demurrer to the complaint.