W.U. Tel. Co. v. Frith

• Decision Date: 25 June 1900
• Parties: WESTERN UNION TEL. CO. v. FRITH.
• Court: Tennessee Supreme Court

58 S.W. 118

105 Tenn. 167

WESTERN UNION TEL. CO. v. FRITH.

Supreme Court of Tennessee.

June 25, 1900

Appeal from circuit court, Fayette county; Thomas J. Flippin, Judge.

Action by R. A. Frith against the Western Union Telegraph Company. From a judgment entered on a verdict for plaintiff, defendant appeals. Affirmed.

Jas. M Greer, for appellant.

H. C Moorman, for appellee.

WILKES J.

This is an action for damages against the telegraph company for negligence in the delivery of the following telegram "Hazen, Arkansas. July 11th, 1899. To R. A. Frith Somerville, Tennessee: Little Robert died this morning. Come at once. Waiting here for you. [Signed] W. K. Bacon." Plaintiff, Frith, lived in Somerville, Tenn., with his wife and one child, Robert. His dwelling was within the corporate limits of the town, and about 400 yards from the office of the telegraph company. His wife's father lived at Desarc, Ark.; and she, with her little child, Robert, about 7 years old, had a few days prior to July 11, 1899, gone there to visit her father and relatives. The child became ill on the 5th of July, and died on the morning of Tuesday, July 11th. W. K. Bacon, the brother-in-law of the wife, went to Hazen, a station on the Little Rock & Memphis road, about 15 miles from Desarc (it being the nearest telegraph office), and sent the telegram above set out between 2 and 3 o'clock in the afternoon, paying the charge for transmission and delivery, and about 8 o'clock in the evening returned to the office, and, upon ascertaining that the operator had heard nothing of the delivery of the message to plaintiff, sent another telegram to the operator at Somerville, requesting that the first one be delivered without delay, and paid, also, for this latter telegram. Mr. Bacon remained at Hazen until after the arrival of the train from Memphis the next day, upon which Mr. Frith was expected to come in response to the telegram, and when he did not come, and he did not hear from him, he returned to Desarc; and Mr. Frith not coming, and not having been heard from, the child was buried. It is shown that the operator at Somerville received the message at 4:40 on the afternoon of July 11, 1899, and Frith was then in Somerville, and the operator knew him and where he resided, and had delivered telegrams to him at his residence on other occasions. Frith remained at his residence that night, and the next day was at work in Somerville, near the public square, until 4:45 in the afternoon, when he went out to work at Jackson's, some eight miles in the country, and remained until the afternoon of Saturday, the 15th, when he returned, and, through the mail, received a letter from his wife informing him of the death of his child, Robert. Soon thereafter a friend told him there was a message for him at the telegraph office. He telephoned to that office and inquired if there was a telegram there, and the operator answered that there was, and to come and get it, and he would explain why it had not been delivered earlier. About 6 o'clock in the evening the operator found the plaintiff at a store uptown, and explained to him that he had put the telegram in his pocket after receiving it, intending to deliver it when he came up town, as he usually did in the evening. When he came uptown he forgot all about the telegram, and did not think of it again until Frith telephoned to him about it four days thereafter. It appears that the operator lived some 325 yards from the residence of the plaintiff. Frith, after receipt of the letter and telegram, on Saturday, went to Desarc. If the telegram had been delivered promptly, as it should have been, he would have been able to reach Desarc before the burial of his child, by either of two roads from Memphis, and would have gone. There was a trial before the court and a jury, and a verdict for $1,900, the amount sued for. Upon suggestion of the trial judge, there was a remittitur of $900, and judgment for $1,000 and costs. Defendant telegraph company has appealed and assigned errors.

It is said it was error to admit evidence of the sending of the second telegram, as that was a separate and distinct matter. We think it was not error, but was pertinent to show the urgency of the sender of the message and the negligence of the company in not delivering the original telegram; and this is true whether, as a matter of fact, the second message was or was not sent. The wording of the message carried with it notice of its importance and the necessity for immediate delivery. This was made still more prominent and important by the effort to trace it and procure its delivery. The sending of the second message bore directly upon the question of the defendant's discharge of duty, and accentuated its negligence in that regard. Telegraph companies, like common carriers, are public servants, and held to a very high degree of diligence and a strict discharge of duty. Marr v. Telegraph Co., 85 Tenn. 529, 3 S.W. 496; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S.W. 574; Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S.W. 725; Jones v. Telegraph Co., 101 Tenn. 442, 47 S.W. 699. Having violated its duty and been negligent in its discharge, the company is liable in damages. These damages must be such as to reasonably compensate the party injured for the mental anguish, grief, and disappointment caused by the...