W.U. Tel. Co. v. Robinson

• Decision Date: 13 November 1896
• Citation: 37 S.W. 545,97 Tenn. 638
• Parties: WESTERN UNION TEL. CO. v. ROBINSON.
• Court: Tennessee Supreme Court

37 S.W. 545

97 Tenn. 638

WESTERN UNION TEL. CO. v. ROBINSON.

Supreme Court of Tennessee.

November 13, 1896

Error to circuit court, Rhea county; James G. Parks, Judge.

Action by T. J. Robinson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Affirmed.

V. C. & N. Q. Allen and Lemuel R. Campbell, for plaintiff in error.

B. G McKinzie and Burkett, Miller & Mansfield, for defendant in error.

SNODGRASS C.J.

The defendant in error sued the telegraph company for damages for the negligent failure to transmit and deliver from the town of Evansville, a telegram addressed to J. A. Whitner, Dayton Tenn. The declaration alleges that on or about August 19 1895, the plaintiff's minor daughter, Katie, was dangerously sick, and expected to die; that she had professed the Christian religion, and desired to be united with the church of God; and that said Whitner should confer the rite of baptism, and admit her into the church of which he was a minister,-the nearest available minister of the said church to the residence of the plaintiff. The message was in the following words: "Evansville, Tenn., 8-19-'95. To Rev. Whitner, Dayton, Tenn.: My daughter Katie is dangerously sick. Wants to be baptized. Come to Washington at once. Wire me at Evansville at once. T. J. Robinson." This message was delivered to defendant at the town of Evansville, Tenn at its receiving office at that point, and charges for its transmission to Dayton paid in advance,-all that was demanded by the agent who received the message. The message was received about dark, the agent receiving it stating that it could be delivered that night, and that he would do his best to get it through. Evansville and Dayton were on the same railroad, and only a few miles apart, and the home of the plaintiff was near Evansville, and in the vicinity of Washington, Tenn. It appears in evidence that the message was received at Dayton about 7:55 p. m. on the night of its transmission; that the messenger boy of the office had left before the telegram was received, and the agent at Dayton made no effort to procure his return, or to secure any other messenger, in order to deliver the message to Rev. Whitner who, it appears, lived in the town of Dayton, just beyond the corporate limits, but within the improved portion of the place, and a little more than one-half a mile from the telegraph office. The message was sent to him the next morning, when he went immediately to Washington, and found the young lady was dead. He reached there about 9 o'clock, and she had been dead about an hour. He stated that he would have gone the night before if he had received the message, and that if he had reached there in time he could have baptized the young lady, and asked her the necessary questions, and could have reported the same to his session, and felt sure she would have been admitted had she lived. The law of the Cumberland Presbyterian Church-his church-required the action of that church session before members could be admitted. The other evidence material to be noticed, in addition to that respecting the mental anguish suffered by the father in consequence of the nonarrival of the minister, was offered by the defendant respecting the custom of its office boy, not very material to be stated, and the fact that it had a rule not to make free delivery beyond a half mile, this not being very much more material than the other, inasmuch as it seemed to be a rule laid away, and of the existence of which nobody was advised, and particularly the plaintiff, nor does it appear that it was observed or required to be, inasmuch as the testimony in this case shows no failure to deliver any message received addressed to the residents of Dayton, and, on the contrary, that the agent would frequently make delivery at points further than one-half a mile, and sometimes at night, for accommodation, when he thought the message was important. That there was ever any refusal to do so does not appear. On this proof, upon defendant's plea of not guilty, trial being had, verdict and judgment were rendered for $500, and the defendant appealed in error. Errors assigned are: First. Refusal of the court to charge that, if the proof establishes that Rev. Whitner lived more than one-half mile from the telegraph office, and that the company had a rule that messages beyond that limit were not to be delivered free of charge, then the company would not be liable for a failure to deliver, unless an arrangement was made with the company to deliver the message in this instance. Second. Because there was no evidence to support the verdict. Third. Because the verdict was excessive. Fourth. Because the court erred in charging the jury as follows: "If the proof should establish that the Reverend Whitner lived more than a half mile from the defendant's Dayton office, and that the defendant had a rule that it would not deliver messages free outside of a half-mile limit...