Arkansas & L. Ry. Co. v. Stroude

• Decision Date: 11 November 1905
• Citation: 91 S.W. 18
• Parties: ARKANSAS & L. RY. CO. v. STROUDE.
• Court: Arkansas Supreme Court

91 S.W. 18

ARKANSAS & L. RY. CO. v. STROUDE.

Supreme Court of Arkansas.

November 11, 1905.

Appeal from Circuit Court, Howard County; James S. Steel, Judge.

Action by A. J. Stroude against the Arkansas & Louisiana Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action against appellant to recover for mental pain and anguish suffered by reason of the alleged negligent failure of the defendant to deliver a telegraphic message. The complaint alleged: That the defendant was a domestic corporation, and owned and operated for hire a telegraph line along the line of its railroad from Hope, Ark., to Nashville, Ark., and connected with the telegraph line of the Western Union Telegraph Company at Hope. That on September 30, 1903, one J. D. Carter, a relative of plaintiff, delivered to the Western Union Telegraph Company at Mohawk, Tenn., for transmission, a message, addressed to plaintiff at Nashville, Ark., in the following words: "Your wife is not expected to live. Come home at once." That said message was by the Western Union Company delivered to defendant at Hope, but that defendant wantonly, willfully, and negligently failed to transmit and deliver said message to plaintiff. The defendant filed its answer, in which all the allegations of the complaint are denied. It admitted that such a message addressed to A. G. Stroude was delivered to it by the Western Union Company at Hope, and was promptly transmitted over the line to Nashville, and alleged that, immediately upon receipt of the message at Nashville, its agents at that place made diligent effort to find the addressee and deliver the message, but failed to find him. It also alleged that the contract by which the message in controversy was transmitted provided that any claim for damages must be presented in writing within 60 days after the message is sent, as a condition precedent to the right of recovery, and that no such claim was presented in writing, as required by the terms of said contract. The facts proved at the trial, or so much as deemed important to mention, are recited in the opinion. The trial of the cause resulted in a verdict in favor of the plaintiff, and the damages were assessed at $500. The defendant filed its motion for new trial, and, after the same had been overruled, saved its exceptions to the rulings of the court, and appealed.

B. S. Johnson and W. C. Rodgers, for appellant. Feazel & Bishop, for appellee.

McCULLOCH, J. (after stating the facts).

1. Appellant contends that there should have been no recovery by appellee for the reason that he failed to give notice in writing of his claim for damages, as required by the contract. The following stipulation is printed upon the blank used in sending the message, viz.: "The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message." The blank upon which the message was originally written, when delivered to the Western Union Telegraph Company for transmission, contained a similar stipulation, and appellee gave notice to that company within 60 days. It is argued that compliance with this stipulation was a condition precedent to the right to maintain a suit for recovery of damages. If it be held that compliance with the stipulation was a condition precedent, and that appellant had a right to insist upon notice to it of the damage, we say that under the facts of this case, as shown by undisputed testimony, appellant waived its right to such notice. It is conceded that appellee, several days after the receipt of the message at the Nashville office, and after he had been informed by the sender of the message that it had been sent, inquired at the office of appellant, and was assured by the operator that the message had never been received; and afterwards appellee's attorney informed appellant's agent of his intention to file a claim for damages on account of failure in the transmission and delivery of the message, and the agent still insisted that the message had never been received. Appellee did not know, until after the expiration of 60 days, that the message had ever been delivered to appellant, and filed his notice of damages with and brought suit against the Western Union Company. It is clear that appellee and his attorneys were misled by the statements made to them by the agent of appellant whose duty it was to deliver the message and to give information concerning it, and appellant cannot be permitted to take advantage of the failure of appellee to give the notice when such failure was caused by the misleading statements of its agent. Joyce on Electric Law, § 726; Sherrill v. Western Union Tel. Co., 109 N. C. 527, 14 S. E. 94; W. U. Tel. Co. v. Jones, 95 Ind. 228, 48 Am. Rep. 713. Appellee could not give the notice of the damage to appellant when he did not know, and could not with reasonable diligence ascertain, that the delay was caused by appellant's fault. A construction of the stipulation which would require the giving of the notice before appellee could, with reasonable diligence, ascertain the fault, would in effect deprive him of all redress for the injury, and would render the stipulation...