177 Ind. 168 | Ind. | 1912
This was an action to recover damages alleged! to have resulted from the failure of appellant to deliver two telegrams to appellee, the addressee. The complaint was in two paragraphs, alike except that one was based on the first message and the other on the second. There was an answer of general denial, a trial by jury, and a verdict for appellee for $100.
The assignments of error challenge the sufficiency of the complaint and the correctness of the action of the trial court in overruling appellant's motion for a new trial. One of the causes for a new trial is that the evidence is insufficient in law to sustain the verdict.
As the attack on the complaint and the sufficiency of the evidence involve practically the same question of law, a consideration of this question will settle both, and the merits of the appeal.
The first paragraph of the complaint alleges, in substance, that on October 21, 1908, appellant maintained telegraph lines between the village of Bippus, Huntington county, and the town of Dunkirk, Jay county, both in this State, and kept offices in both places for receiving, sending and delivering telegraphic messages for the public; that appellee was a practicing physician with an office and residence in Bippus, and had, before that date, been employed by contract with
Dunkirk, Indiana, 10/21, 1908.
To Doctor Biggerstaff,
Bippus, Indiana.
Meet me at Dunkirk Oct. 22d.
W. O. Huffman.
That the Huffmans complied with appellee’s rules and requirements, and paid the regular and full charges for the transmission and delivery of the message; that appellee had lived in Bippus three years prior to the sending of the message, and was at his home, which was within one mile of appellant’s office in Bippus, so that the message could have been promptly delivered to him; that appellant wholly failed and neglected to deliver the message, and by reason of such failure the Huffmans were compelled to employ another physician, and appellee lost the employment under said contract; that by reason thereof, and of appellant’s said negligence, appellee was damaged in the sum of $1,000.
The second paragraph counted on a message sent the next day in the same terms as that set out, except that the meeting at Dunkirk was fixed for a day later.
The evidence shows that appellee was a practicing physician at Bippus, and maintained his office and residence there at the time the telegrams were sent, and had been for three years before. On October 16 he was called to see "W. C. Huffman at Albany, Indiana, who was seriously ill from some chronic stomach trouble. After examination he said he could cure him. Huffman did not have the means to pay for treatment, and his brother, T. C. Huffman, entered into an oral agreement with appellee, that he would take the sick man to his home near Dunkirk to have him treated, and
Telegraph companies are invested with certain valuable powers and privileges because of the public character of the business they are engaged in. They undertake to serve the public; and even in the absence of a statute such as this, they should be held liable to the addressee of a message they have undertaken to deliver, as for a negligent violation of a public duty. Jones, Telegraph and Telephone Companies §478.
The case before us is not an action on the contract to transmit and deliver the telegrams sent by Huffman. Both the complaint and the evidence show an inexcusable violation of a duty imposed by statute, which by its express terms requires the violator to answer for the special damages resulting therefrom. That part of the rule laid down in Hadley v. Baxendale, supra, and the narrow construction
In Jones, Telegraph and Telephone Companies §519 it is said: “Having certain public duties to perform, on a failure to properly discharge them, they will be liable to anyone injured thereby. For instance, they hold themselves out as being ready and willing to transmit all proper messages tendered to them; and, as people seldom resort to these companies for their services unless the matter is of much importance and must be attended to quickly it is presumed that they will transmit the message in the exact words in which it was delivered to them, and deliver it to the addressee as promptly and speedily as it is possible for them to do. This is a public duty which they owe to everyone who applies to them for services, and one which they must take
6. The facts that the message was sent to a physician, that its words were an imperative call for his presence at a place three counties removed from his residence on the day following, that the telegraph was used instead of the mails all indicated the importance of it and were sufficient to warn appellant’s agents that harm and loss would follow its nondelivery. And with the first message not delivered, but lying in appellant’s office without attention, the receipt of the second one on the following day doubly emphasized this warning.
In addition to the cases before cited, the following are valuable authority on the question involved: Western Union Tel. Co. v. Henley (1901), 157 Ind. 90, 60 N. E. 682; Providence Washington Ins. Co. v. Western Union Tel. Co. (1910), 247 Ill. 84, 93 N. E. 134, 30 L. R. A. (N. S.) 1170, 139 Am. St. 314; Postal Tel. Cable Co. v. Lathrop (1890), 131 Ill. 575, 23 N. E. 583, 7 L. R. A. 474, 19 Am. St. 55; Western Union Tel. Co. v. Longwill (1889), 5 N. Mex. 308, 21 Pac. 339; Fairley v. Western Union Tel. Co. (1895), 73 Miss. 6, 18 South. 796; Western Union Tel. Co. v. McLaurin (1880), 70 Miss. 26, 13 South. 36; Western Union Tel. Co. v. Church (1902), 3 Neb. (Unofficial) 22, 90 N. W. 878, 57 L. R. A. 905; Cowan v. Western Union Tel. Co. (1904), 122 Iowa 379, 98 N. W. 281, 101 Am. St. 268, 64 L. R. A. 545; 16 Current Law 2358, 2359 and cases cited; 2 Thompson, Negligence §2471; 2 Joyce, Damages §§1402, 1432.
Judgment affirmed.
Note.—Reported in 97 N. E. 531. See, also, under (1) 13 Cyc. 32, 156; (2) 13 Cyc. 28; (3) 37 Cyc. 1750; (4) 37 Cyc. 1755; 117 Am. St. 287; 10 Am. St. 778; 30 L. R. A. (N. S.) 1116; (5) 37 Cyc. 1766; 14 L. R. A. (N. S.) 533; (6) 37 Cyc. 1750. For a discussion of the necessity that damages from the failure to transmit telegram be contemplated, see 1 Ann. Cas. 361; 10 Ann. Cas. 479.