Hurlburt v. Western Union Telegraph Co.

Bishop, J. Failure to deliver message: error in -The message, as delivered to the defendant company in Chicago for transmission, was as follows: “Hannah Hulburt, Lyons, Iowa. Mother died Monday. Funeral Thursday. [Signed] William Bramman.” It is conceded that, although the message was received at the Lyons office, no delivery thereof was made to plaintiff, and she did not learn of her mother’s death until after the funeral. Defendant seeks to justify its failure to deliver the message on the ground of the error in the spelling of the name of the sendee; the argument being that it was not bound to hunt out a person named “Ilurlburt,” to whom to deliver a message addressed to a person named “Hulburt.” The rule is that a telegraph company 'is bound to use reasonable efforts to deliver messages confided to it. Whether or not it has done so, in a given case, is to be determined upon a consideration of all the facts, including an improper or defective address, where such appears, as is alleged, as in the instant case; and the question is usually one for the jury. Beasley v. Telegraph Co. (C. C.) 39 Fed. Rep. 181. The question ás made in this case was properly submitted to the jury, and under proper instructions. The jury found negligence on the part of the defendant, and we cannot say thé verdict was not warranted. The name and address of plaintiff’s husband appears in the city directory. The names “Hulburt” and “Hurlbart,” if not idem solans, arc so nearly identical as to come within the rule announced in Beasley v. Telegraph Co., supra. There the message was addressed to plaintiff at Wallace, Texas. There ivas no such place, but there was a town named Wallis. Jt ivas held to be a case of idem sonans, and that the message should have been sent to Wallis. Quite different is the ease of Elsey v. Telegraph Co. (Com. Pl.) 3 N. Y. Supp. 117, relied upon by appellant. There a message intended for “P. Ellsworth” was erroneously addressed to “P. Elsey”— names similar in neither spelling nor pronunciation. [297] 2. damages: mental pam. [296] II. The sole ground of damage alleged by plaintiff, and upon -which she seeks to recover, is mental pain and anguish [297] resulting from not receiving’ notice of ber mother’s death in time to attend the funeral. That a recovery niay. ke pac{ cases, we held in Mentzer v. Telegraph Co., 93 Iowa, 752, and again in the recent case of Cowan v. Telegraph Co., 122 Iowa, 379. We are content with the rule as thus laid down. III. Appellant questions the bona 'fides of the claim as made by plaintiff for damages, as viewed in the light of the evidence given upon the trial. We may dispose of the contention by saying that, whatever we might feel disposed to do, were the question presented to us as an original proposition, we are bound by the verdict of the jury, especially as the amount awarded was within reasonable limits. We think there was no error, and the' judgment is aeeirmicd.