Miles v. American Railway Express Co.

• Decision Date: 10 October 1921
• Docket Number: 149
• Citation: 233 S.W. 930,150 Ark. 114
• Parties: MILES v. AMERICAN RAILWAY EXPRESS COMPANY
• Court: Arkansas Supreme Court

233 S.W. 930

150 Ark. 114

MILES v. AMERICAN RAILWAY EXPRESS COMPANY

No. 149

Supreme Court of Arkansas

October 10, 1921

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed.

Culbert L. Pearce, for appellant.

1. As to the disease of hydrophobia or rabies and its effects on the human body, and for a proper understanding of the reasons why the local physician advised the father to send the dog's head by express to Little Rock for microscopical examination, see Ander's Practice of Medicine. 13 Ed., p 292; DaCosta's Modern Surgery, 8 Ed., 351; DaCosta's Handbook of Mod. Treat. vol. 1, p. 144; Encyc. Britannica, 11 Ed. vol. 14, p. 167; Roseneau on Preventive Med. & Hyg. (1918) pp. 45-53.

We find no parallel case to this in the reports, but, as supporting the theory of the express company's liability under the facts alleged in the complaint, see 138 Ky. 704; 8 Tex. Civ App. 363; 9 Exch. 341; 4 R. C. L. 737; Id. 745; Id. 936, 938; Hutchinson on Carriers, § 1367; 89 Tex. 428; 94 Wis. 44; 92 S.W. 40; 91 Id. 1121; 88 Id. 870. On the question of special damages: 74 Ark 358; 90 Id. 452; 76 Id. 220; 82 P. 502; 115 Ark. 142; 40 Cal. 657; 90 S.C. 366, 73 S.E. 772; 1 Q. B. Div. 274.

The patron of an express company is warranted in expecting quicker and safer service from such company than he could expect from an ordinary carrier. 104 N.C. 278; 6 L. R. A. 271.

2. The defendant having been informed in advance of the special purposes of the shipment, and its attention daily called by the father to the unnecessary delay, its failure to deliver was gross and willful negligence for which he is entitled to recover punitive damages for his own distress of mind and for the pain and suffering of the child. 5 Am. & Eng. Enc. of L., 2nd. Ed., 392; 4 R. C. L. 934; Hale on Damages, 102.

Mehaffy, Donham & Mehaffy, for appellee.

1. The facts stated in the complaint do not show that either of the plaintiffs suffered any damages or had to pay out any money because of negligence on the part of the express company. 1 Shearman & Redfield on Negligence, p. 11; Id. pp. 42, 48; 20 R. C. L., 9.

2. The fathers in this case could not recover for the pain and suffering of the children, nor for their own mental distress and anxiety. 27 S.W. 830; 9 Id. 598; 64 N.E. 595.

OPINION

HART, J.

This is an appeal from a judgment sustaining a demurrer to and dismissing the complaint for damages for an alleged breach of contract.

On January 31, 1921, E. W. Miles filed an amended complaint against the American Railway Express Company which is as follows: "The plaintiff alleges:

"That defendant is and was at all times hereinafter mentioned a common carrier engaged in the carriage of express matter for hire, over the line of the Missouri Pacific Railroad Company, between the town of Bald Knob and the city of Little Rock, Arkansas.

"That on the 15th day of June, 1920, plaintiff, through his agent, the Huffaker Mercantile Company, delivered to defendant, and the defendant accepted at its office in the town of Bald Knob, one metal bucket properly packed, iced and labeled, containing the head of a dog to be transported to the city of Little Rock, a distance of fifty-seven miles, and there delivered to the hygienic laboratory, and that plaintiff, through his said agent, paid the sum required of him as charges for said services, and at the time informed defendant's agent of the contents of said shipment and the specific purpose for which it was intended to be used.

"That, on the morning of said day, the dog from which the head was afterward severed, while showing symptoms of hydrophobia--which symptoms also show in other and less dangerous diseases of dogs--severely bit and lacerated Florence Miles, aged six, a daughter of the plaintiff.

"That plaintiff, for the purpose of protecting the said child from the probable danger of contracting hydrophobia from the bite of said dog, and acting upon the advice of a local physician, killed said dog, severed the head therefrom and caused the same to be shipped as aforesaid for microscopical examination to determine whether said dog was affected with hydrophobia or rabies, a dangerous and dreaded disease which may be communicated to human beings, and which in most instances causes great suffering and certain death.

"That defendant wilfully, negligently and wrongfully failed and refused to deliver said bucket to the consignee until the evening of the fourth day after the day of shipment, at which time said dog head was so decomposed that a microscopical examination to determine the presence or establish the absence of hydrophobia germs could not be successfully made, and plaintiff was thereby deprived of the only method known and recognized by medical science for determining whether the said dog was infected with germs of hydrophobia.

"That plaintiff repeatedly communicated with the said hygienic laboratory by telephone, seeking information concerning the results of the intended examination, but each time was informed that no such shipment had arrived; and each time thereafter plaintiff went to defendant's office at Bald Knob and urged its agent to investigate the delay, but was given no information or satisfaction by the defendant's said agent, he appearing very indifferent about the matter.

"That, on the account of the failure as aforesaid to determine the presence or to establish the absence of hydrophobia germs in said dog by means of a microscopical examination, which failure was caused by the negligence of the defendant, plaintiff was then advised by his physician that the only reasonable course left for the protection of the said child from the probable dangers of hydrophobia would be to cause it to undergo a preventive treatment, which treatment is commonly and generally known as the Pasteur treatment for prevention of hydrophobia or rabies.

"That plaintiff, acting upon said advice, took said child to the department of pathology of the University of Arkansas School of Medicine, located in the city of Little Rock, and caused it to undergo the said treatment, which treatment required a twenty-one days' course and caused the said child much pain and suffering.

"That plaintiff expended the sum of $ 127.50 for medical services and medicine, attendant for said child, hospital fees, board, railroad fare and other necessary items, including express charges on said shipment and telephone messages in trying to secure delivery thereof, all of which he was compelled to expend on account of defendant's wilful negligence and wrongful failure and refusal to deliver said package within a reasonable time, and plaintiff further suffered much annoyance and inconvenience by reason of said default and suffered great anxiety and distress of mind on account of the pain and suffering of his said child by reason of said anti-hydrophobia treatment.

"That plaintiff is entitled to the sum of $ 127.50 for money actually expended as aforesaid, and the sum of $ 500 for special and exemplary damages on account of defendant's negligence as aforesaid.

"Wherefore plaintiff prays judgment for the sum of $ 127.50 on his first count, and for the sum of $ 500 on his second count, and for costs and for all other and proper relief."

On the same day W. N. White filed an amended complaint against the American Railway Express Company which is the same as the above...