Arkansas & Louisiana Railway Co. v. Lee

• Decision Date: 02 July 1906
• Citation: 96 S.W. 148,79 Ark. 448
• Parties: ARKANSAS & LOUISIANA RAILWAY COMPANY v. LEE
• Court: Arkansas Supreme Court

96 S.W. 148

79 Ark. 448

ARKANSAS & LOUISIANA RAILWAY COMPANY v. LEE

Supreme Court of Arkansas

July 2, 1906

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

STATEMENT BY THE COURT.

On Sunday, January 17, 1904, the following message to John W Lee was delivered to an agent of the Arkansas & Louisiana Railway Company, hereinafter referred to as the railway company as follows:

"Pa died last night. Wire me what time you can reach here.

"W D. LEE."

The railway company does a telegraph business for hire. It has a line of railroad and telegraph from Nashville to Hope, and at Hope the operator is common to the railroad company and the Western Union Telegraph Company, to which company the railroad company delivers all messages going beyond Hope. Meadows was station agent and telegraph operator at Nashville. O. N. Lee was station clerk under Meadows, but was not an operator. John W. Lee is a brother of W. D. Lee. Taking the evidence most favorable to support the verdict these are the established facts of the case: The message was delivered to O. N. Lee about 8:30 a. m. Sunday. O. N. Lee said the operator was not there, but would be there in about an hour, and he received the message and placed it on the operator's hook for transmission. The Sunday hours at Nashville were a few minutes before and after the arrival and departure of the trains. The train left at 8:30 a. m. and returned on Sunday at 6:30; on week days there was another train reaching Nashville at about 1 p. m. O. N. Lee was at the station and in charge thereof from 8 o'clock until ten or fifteen minutes after the train left, and the operator had not appeared up to that time. The operator had sat up late the night before, and was asleep in a hotel across the street from the station at this time. W. D. Lee heard that his message had not been transmitted, and went to the station about 11 o'clock, and the operator was not there, but O N. Lee told him it had been transmitted within ten minutes of its receipt. This statement was denied by O. N. Lee, but he does not deny the absence of the operator at the time of W. D. Lee's visit. The Nashville operator testifies that he reached the station between 9:30 and 10, and at once tried to raise the Hope operator, but could not until about 11 o'clock. The Hope operator says that Nashville did not call that office between 9:30 and 10; and that 10 o'clock was closing time there but, owing to the nature of the message, it was received when sent by the Nashville office, at 10:57 a. m. The joint agent at Hope received the message at 10:57, and it was received at Shreveport, La., at 11:50. The time required for transmission from Hope to Shreveport is about one minute. At Shreveport is was delayed until 3:25, when it was received at Leesville from Shreveport. The reason for this delay was that the operators were usually given from 11:30 to 3 o'clock, by the dispatchers on Sundays.

The operator at Leesville ascertained that John W. Lee had left town, and he located him over long distance telephone, and gave him the message a few minutes after its receipt by him. John W. Lee started for Nashville on the first train after receiving the message, and telephoned from Shreveport to his brother that he had started, and would get to Nashville as soon as possible. He got to Nashville at 6:30 p. m. Monday. His father had been buried that afternoon. Had he received the telegram any time prior to 1:20 p. m. Sunday, he would have reached Nashville no later than 1 p. m. on Monday, in time for his father's funeral. He sent no communication after notifying his brother from Shreveport that he was on the way. John W. Lee sued both companies, and recovered a verdict for $ 300 against them jointly, and the companies have appealed.

Judgment affirmed.

W. C. Rodgers and B. S. Johnson, for appellant railway company.

1. Appellee is a resident and citizen of Louisiana. The message was for delivery to him in that State. He can not maintain an action under the mental anguish statute. 97 Ala. 126; 10 Lea (Tenn.), 352; 60 Miss. 977; 33 Kan. 83; 89 Tenn. 235; 143 Mass. 301; 61 Kan. 667; 70 N.H. 5; 85 F. 943; 74 Miss. 782; 95 Ala. 337; 113 Ala. 402; 50 Ark. 155; 67 Ark. 295; Western Union Telegraph Co. v. Ford, 77 Ark. 531. Whatever is a defense to an action of this kind in the State where the cause of action accrued is a defense in the State of the forum. 68 N.H. 382; 66 Ill.App. 173.

2. There is no proof of negligence on the part of appellant railway company. Its line extends no further than Hope, Ark and it is in proof that its agent forwarded the message as soon as he could get the Western Union at that point.

3. There ought to be no recovery against the railway company because the message was not given to the operator, but to a station clerk who knew nothing of the telegraph business, and who informed the sender that the operator was not in the office. No request was made to call the operator, nor did the sender do so herself, which she could easily have done by telephone. 36 Ark. 371; 48 Ark. 106; 76 Ark. 356; 3 Cliff. (U.S.C. C.), 184; 3 Houst. (Del.), 233; 12 Fed. Cas. No. 6914; 105 Iowa 335; 170 Ill. 645; 84 Tenn. 161; 83 Pa.St. 22. The railway company is under no legal duty to know the office hours of the various offices of the Western Union, neither is it responsible for delay in transmission of messages caused thereby. 103 Ind. 505; 24 F. 119; 31 S.W. 211; 66 S.W. 17; Croswell, Electricity, §§ 421, 422; 97 Ga. 338; 31 S.W. 210; 43 S.W. 1058; 66 S.W. 292.

4. The jury were entitled to an instruction as to whether or not the Sunday hours of appellant railway at Nashville were reasonable. 73 Ark. 205; 107 Ky. 600.

5. The contract, having been made on Sunday, is void.

Rose, Hemingway, Cantrell & Loughborough, for appellant Western Union Telegraph Co.

The telegraph company exercised diligence in forwarding the message. Its Sunday hours were reasonable, and the message reached Shreveport without unreasonable delay. If there was any negligence, it occurred in Louisiana, where no recovery can be had for mental anguish.

W. D. Lee and Feazel & Bishop, for appellee.

1. The law of the place where the contract is made determines the rights and liabilities of the parties. It enters into and becomes a part of the contract. 25 Ark. 261; 40 Ark. 423; 135 Mo. 661; 5 Ind.App. 89; 63 Minn. 196; 100 Va. 459.

2. There was evidence of negligence on the part of the railway company, and the jury's verdict on that point is conclusive.

3. The sender had no authority over the absent operator, owed no duty to call him nor to request that he be called. That duty was on the station clerk.

4. Appellants are not relieved on the ground that the transactions occurred on Sunday. The statute fixes the liability for the breach of duty to the public as common carriers of messages. 70 Am. St. Rep. 205; 30 Am. St. Rep. 23.

OPINION

HILL, C. J., (after stating the facts.)

1. It is argued that the "mental anguish" statute does not reach to this case; that there was a contract to deliver the message in Louisiana; that a failure to promptly deliver in Louisiana was the cause of action, and this statute was not in force there, and hence from a failure to obey it without the State no cause of action arose. The facts do not support the argument.

The statute in question...