Western Union Telegraph Co. v. Pearce

Whitfield, C. J., delivered the opinion of the court. It is plainly proved by the testimony, taken as a whole, that all the suffering, physical and mental, endured by the appellee, was due solely to her advanced pregnancy; she being eight months gone. She is not suing for damages caused by nursing her own child, but because she was not in condition, by reason of said pregnancy, to nurse her child at all. The proof shows clearly that she did suffer great anguish of mind and physical agony — so much so that she lost the child of which she was encientej but, while this is true, it is also true that the court excluded from the jury all the proof showing that her suffering, both mental and physical, was due to said advanced pregnancy. The court excluded all evidence of pregnancy, to which the physical and mental suffering the appellee herself says was wholly due. This out of the case, there was nothing left on which to base a finding for special damages, and we think the [492] court was clearly right in excluding this proof. The appellant had no notice whatever of' said pregnancy, and the damages flowing from that are plainly not damages within the contemplation of the parties at the time the contract was made. The damages to be recovered must be such as can fairly be said to have been reasonably within the contemplation of the parties at the time it was made. It is true that Eugene Horton told the operator that the dispatch should be sent right away, and it is also true that it showed on its face that the matter was urgent; but neither of these pieces of testimony in any way showed that the pregnancy 'of appellee was in any way whatever known by the appellant. We are therefore of the opinion that no special damages can be recovered in this case. The ease cited by learned counsel for appellee (McPeet v. Western Union Tel. Co., 107 Iowa, 366, 78 N. W., 63, 43 L. R. A., 214, 70 Am. St. Rep., 205) is plainly sound on its facts. Indeed, the quotation by counsel from it includes the statement: “It is not too strict a rule to hold the defendant responsible for such losses as may be reasonably anticipated to follow its negligence, whether informed definitely what these may be or not.” It cannot be said that the telegraph company in this case knew, or was put in possession of any facts by reason of which it would be bound to know, fhat the appellee was pregnant. But the appellant was plainly negligent, and is clearly liable for the price of the message, at all’events; and, if the proof could show on the new trial that the delay was in delivering the message after it reached its destination, she will be entitled to recover the penalty prescribed by the statute. Reversed and remanded.