Tharpe v. Western Union Telegraph Co.

• Decision Date: 18 April 1910
• Citation: 127 S.W. 730,94 Ark. 530
• Parties: THARPE v. WESTERN UNION TELEGRAPH COMPANY
• Court: Arkansas Supreme Court

127 S.W. 730

94 Ark. 530

THARPE v. WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Arkansas

April 18, 1910

Appeal from Drew Circuit Court; Henry W. Wells, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant by this suit seeks to recover damages of appellee for mental anguish, under section 7947 of Kirby's Digest, growing out of the alleged negligent failure of appellee to deliver a telegram. He also asked to be allowed to recover fifty cents the amount charged by appellee for the transmission and delivery of the message. His complaint states a cause of action. The appellee denied its material allegations. A trial was had by jury, and a judgment was rendered against appellant, and this appeal has been duly prosecuted.

Judgment affirmed.

Williamson & Williamson, for appellant.

Where a message is sent to a mother, announcing the death of her son and, but for the negligent delay in delivering it, she could have reached the place in time for the funeral, the company is liable. 72 S.W. 800; 27 Nev. 438; 1 Am. & Eng. Ann. Cas 346; 73 Ark. 205; 83 Ark. 39; 87 Ark. 303; 112 S.W. 844; 110 S.W. 889; 99 S.W. 1131; 75 S.W. 843; 40 S.W. 624; 20 S.W. 834. The fact that the addressee is not a party to the contract does not prevent a recovery. 84 Ark. 323; 70 Tex. 245; 7 S.W. 715. The plaintiff is entitled to recover the toll paid for the message, even though he was not damaged otherwise. 97 S.W. 829; 78 Ark. 550. And to nominal damages. 61 Ark. 613; 41 Ark. 79; 58 Ark. 29; 65 Ark. 537; 78 Ark. 550.

Geo. H. Fearons, Rose, Hemingway, Cantrell & Loughborough and E. L. McHaney, for appellee.

OPINION

PER CURIAM:

The transcript contains the following bill of exceptions:

"The parties appeared in person and by their attorneys The plaintiff offered to prove negligence on the part of the defendant in the handling of the message in controversy; but, it appearing to the court on the part of the testimony of the plaintiff himself that he could not have reached Pulaski, Illinois, by the ordinary means of transportation in time to attend the funeral of his mother, without a postponement thereof, even though the message had been delivered as soon as possible after it was received in the town of Dermott, the court declares the law to be that under those circumstances the plaintiff couldn't recover for mental anguish in this action, even though the defendant negligently failed to deliver the message until October 31, or even November 1.

"The court instructed the jury to return a verdict for the defendant, which was accordingly done. To this declaration of law the plaintiff at the time excepted.

"And now comes the plaintiff, by his attorneys, Williamson & Williamson, and presents this his bill of exceptions, containing all the proceedings had at the trial of the said cause, and asks that the same be examined, approved, signed and ordered filed and made a part of the record in this case, which is hereby accordingly done."

The bill of exceptions shows that appellant could not have reached Pulaski, Illinois, by the ordinary means of transportation in time to attend the funeral of his mother without a postponement thereof, even though the message had been delivered promptly at Dermott. But, in the absence of evidence showing that, had a telegram been promptly delivered, appellant could and would have procured a postponement of the funeral and would have attended same, no error of the court is made to appear. Every presumption must be indulged in favor of the correctness of the ruling of the trial court. Johnson v. State, 75 Ark. 427 88 S.W. 905, on rehearing; Curtis v. Des Jardins, 55 Ark. 126, 17 S.W. 709. See cases collated, 1 Crawford's Digest,...