44 Neb. 732 | Neb. | 1895
The defendant in error, as plaintiff in the district court, recovered judgment against the plaintiff in error for $167.20 damages which she claimed to have sustained because of the .telegraph company’s delivering to her, as an answer to a message by her sent, one which was not in fact an answer thereto. The petition alleges, in brief, that on or about the first day of October, 1891, the plaintiff employed one Pound to employ the telegraph company to transmit a message to Seattle, Washington, inquiring as to the whereabouts of plaintiff’s husband, and the plaintiff paid in advance the charges for transmitting said message; that Pound instructed the telegraph company to deliver to plaintiff the answer; that the defendant negligently and carelessly delivered to plaintiff a telegram, claiming that the same was in answer to the message sent by her when in fact it was not in answer thereto, and had no relation thereto; that the plaintiff paid the telegraph company the charges on the second message; that by reason of the
At the close of the plaintiff’s testimony the defendant a-dted the court to instruct the jury to return a verdict for the defendant. This motion was bad for the same reason as the objection to the evidence. A cause of action for some amount was pleaded and confessed.
Complaint is made in the briefs of the giving of two instructions. The only assignment of error relating thereto is directed en masse against instructions from 1 to 8 inclusive. Most of these are manifestly correct, the third
The only assignments remaining for notice are that the verdict was not sustained by sufficient evidence and that the damages allowed were excessive. The evidence is brief and discloses no conflict. In 1891 the plaintiff’s husband ceased writing to her and she employed A. L. Pound, a detective, to make search for him. Pound sent by the defendant company a message to the chief of police at Seattle, Washington, inquiring if Dauiel P. Mullins was employed by the Seattle Dry Lumber Company. Pound directed the clerk of the telegraph company to deliver any answer which might be received to the plaintiff. The next day a message was delivered to the plaintiff as follows (omitting printed heading and check marks):
“Dated Aspen, Colo.,-21.
“To A. L. Pownd: H. is here. Come at once. Will meet you at Glenwood Springs. Answer here if coming.
“P. H. Fitzpatrick.”
The following day the plaintiff went to the telegraph office and requested a person she calls the “ operator ” to write a message she wished to send in answer to the one received. What then occurred she relates as follows : “ The operator asked me the question, ‘Where do you wish to send it?’ I said, ‘ To Seattle.’ He replied, ‘ This is from Glenwood Springs.’ I replied, ‘How is that ? Is not this the answer to the dispatch which Mr. A. L. Pound sent to Seattle?’ He said, ‘Certainly it is the answer.’ I said, ‘I don’t understand it.’ He said, ‘Why, they have got him at Glenw.ood Springs, and want you to meet him there.’ I then asked him if that was on the route to Seattle, and he said, ‘Yes.’ I asked him how far Glenwood
The general principle governing the case is well settled; the application of the principle is not always easy. In South & North Alabama R. Co. v. Huffman, 76 Ala., 492, it was held that a railroad company was liable for erroneous advice and directions given by a ticket agent in regard to the train which the plaintiff should take. The doctrine of that case seems sound and would govern the case we have supposed of a misdirection by the telegraph clerk resulting in missending a message, or of a ticket agent in sending a passenger astray. The Alabama case cites a large number of cases, only three of which, however, are at all in point. Two of these are cases where it was held that a railroad was liable for
Reversed and remanded.