Postal Telegraph & Cable Co. v. Kelley

• Decision Date: 13 May 1912
• Citation: 147 S.W. 457,103 Ark. 442
• Parties: POSTAL TELEGRAPH & CABLE COMPANY v. KELLEY
• Court: Arkansas Supreme Court

147 S.W. 457

103 Ark. 442

POSTAL TELEGRAPH & CABLE COMPANY v. KELLEY

Supreme Court of Arkansas

May 13, 1912

Appeal from Ashley Circuit Court; Paul G. Matlock, Special Judge reversed.

Judgment affirmed.

James C. Knox, for appellant.

1. To warrant a recovery, the proof must show, not only that the defendant was negligent in failing to deliver the messages but also that if they had been delivered plaintiff could and would have been present before the death of his son and at his funeral. 89 Ark. 483.

2. If negligence had been shown, still appellee is barred from recovery for failure to present the claim within ninety days. 80 Ark. 554; 94 Ark. 336.

3. Appellee is barred also because he lived beyond the free delivery limits of the town of Hamburg. 89 Ark. 402; 82 Ark 117; 3 Tex. Civ. App. 310; 71 F. 651.

Geo. W. Norman, for appellee.

1. The case of Louisiana & Arkansas Ry. Co. v. Stroud, 82 Ark. 117, is controlling in this case.

2. Where suit is brought and summons served in ninety days, no other notice of the claim is necessary. 45 Cent. Dig. § 42; 37 Cyc. 621; 12 Am. & Eng. Ann. Cases, 556; 1 L. R. A. (N. S.) 525; 89 Ala. 510; 18 Am. St. Rep. 148 5 Ga.App. 503; 27 N.E. 313; 109 N.C. 527; 133 N.C. 603 77 S.C. 378; 33 S.W. 727; 29 S.W. 66, 60 S.W. 63; 69 S.W. 427; Id. 997, 75 S.W. 843; 82 S.W. 484; 99 S.W. 327.

OPINION

MCCULLOCH, C. J.

The plaintiff, John C. Kelley, instituted this action against defendant telegraph company to recover damages on account of mental anguish sustained by reason of the nondelivery of two telegrams sent to him from Kosciusko, Mississippi, concerning the illness and death of his son, who resided at that place. The plaintiff resided at Hamburg, Arkansas, about a half-mile outside of the corporate limits and about three-fourths of a mile from defendant's office, which was, however, outside of the free delivery limits established by the rules of the company. His son, Wiley Kelley, became dangerously ill at Kosciusko, Mississippi, and one Barnett sent to plaintiff a telegram in the following words, addressed to him at Hamburg: "Your son, Wiley, dangerously sick. Come at once. Answer quick." The message was received by defendant's agent at Hamburg about 9:35 o'clock A. M. on Sunday, December 5, 1909, but was not delivered until Wednesday, December 8. Wiley Kelley died on the night of December 6, and another message was sent to plaintiff at Hamburg early on the morning of the 7th in the following words: "Wiley died last night. Funeral tomorrow. Wire if you can come." The last message was received by the agent at Hamburg at 8:35 o'clock A. M., and sometime during the forenoon was delivered to plaintiff's son, a young boy, who was a pupil at the public school in Hamburg, and the boy delivered it to his father late in the afternoon when he returned from school. The plaintiff testified that he was perfectly familiar with the railroad routes and connections from Hamburg to Kosciusko; that he could have left Hamburg on a train at 9:30 in the morning, reaching Kosciusko at 8 o'clock the next morning, or that he could have left Hamburg in the evening or night and gone south by the way of Monroe, reaching Kosciusko about 8 o'clock the next morning.

There was sufficient evidence to warrant the jury in finding that if the telegram which was sent on the 5th, acquainting plaintiff with the illness of his son, had been delivered during that day, he could have left Hamburg in time to have reached the bedside of his son five or six hours before the latter's death, and that he would have done so if the telegram had been delivered. It also shows that, if the second telegram had been delivered in due time, he could have reached Kosciusko before the funeral. He did not receive either telegram in time to reach Kosciusko before the funeral, and was thereby denied the privilege of attending the bedside of his son before his death or of attending his funeral. He claims to have suffered great mental anguish, and the jury awarded damages in the sum of $ 800.

The plaintiff testified that he had been living at the same place near Hamburg about thirteen years, and was well acquainted in the town, knew everybody, and was as well known as any one who lived inside of the corporate limits. He testified that he was in town during the day on Sunday, December 5, and also on the succeeding days.

Defendant's agent testified that he made diligent effort to ascertain where plaintiff was, in order to deliver the telegram, and when he ascertained that the latter lived outside of the free delivery limits, he wired for instructions as to delivery, but got no response.

It is earnestly insisted that the evidence is insufficient to warrant the finding of negligence on the part of the company but we are of the opinion that the evidence is sufficient on that issue. The company was not bound to deliver outside of the free delivery limits without payment of delivery fee in accordance with the rule, but there was sufficient evidence to...