8 Ind. App. 364 | Ind. Ct. App. | 1893
This action was commenced by the appellee to recover damages for the alleged failure of the appellant to transmit and deliver to appellee, within a reasonable time, a telegraph message sent by one John Evans, of Spencer, Ind., directed to the appellee, at Blooming-ton, Ind.
The message was in these words: “Joe Cline. Come at once. Mother is dying.” A demurrer was overruled to the complaint. This is the first error assigned. An examination of the complaint shows it to be sufficient to withstand the demurrer. Issues of fact were joined and tried by a jury, which returned a verdict for appellee in the sum of $125. A motion for a new trial was made by appellant, which was overruled. This is the only other error assigned.
Counsel for appellant strenuously insist that the evidence shows that the message was delivered to its agent at Spencer at 7:35 p. m., and that the agent informed the sender that it would have to be sent by way of Indianapolis and Louisville, and that the office would close at Bloomington at 8 p. m., and that it could not, in the usual course of business, transmit the message before the closing hour of its office at Bloomington. If this were the undisputed evidence in the case, the position would be well taken, but we have examined the evidence on this point and find it conflicting. We must decline to weigh it.
It is next insisted that the original message delivered to appellant’s agent at Spencer was not given in evidence, nor was its absence properly accounted for. The agent at Spencer to whom the message was delivered was
It was the duty of the jury to weigh the evidence, such as it was, and the court had no right to take from them this duty. The best evidence should always be produced if possible, before secondary evidence is allowed, but if secondary evidence is given without objection, it is to be considered and weighed by the jury as any other evidence.
The message is not the foundation of this action. The failure to transmit and deliver within a reasonable time is the gist of the controversy. That a certain message was delivered for transmission was a substantive fact necessary to be proved, and the rule is, that when parol evidence is as near the fact testified to as the written, then each is primary. Hewitt v. State, 121 Ind. 245. There is no reversible error in the record.
Judgment affirmed, at costs of appellant.