Western Union Telegraph Co. v. Baltz
| Decision Date | 31 October 1927 |
| Docket Number | (No. 271.) |
| Parties | WESTERN UNION TELEGRAPH CO. v. BALTZ. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Randolph County; John C. Ashley, Judge.
Action by Mrs. Phillip Baltz against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Francis R. Stark, of New York City, Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and Block & Kirsch, of Paragould, for appellant.
Jno. L. Bledsoe and Schoonover & Schoonover, all of Pocahontas, for appellee.
Mrs. Phillip (Agnes) Baltz instituted this action against the Western Union Telegraph Company. She alleged that on July 1, 1925, a brother of hers, Lee Lehnen, acting on her behalf, delivered a telegram to John Daniels, the railway station agent at Scranton, and also the defendant's agent. The telegram is as follows: "Please notify Agnes mother very low." She alleged that the message was signed by Lehnen, and addressed to Joe Baltz, who was her brother-in-law, and acting for her. She alleged that she was the "Agnes" mentioned in the telegram, and that same was sent for her benefit; that the telegram was delivered over the railway company's telephone line to the agent of the defendant at Paris, Ark.; that the defendants and its agent were negligent in receiving, transmitting, and delivering the said telegram, and, because of such negligence, the telegram was never delivered; that her mother died on July 5, 1925; and that, because of the aforesaid negligence of the defendant and its agent, she had suffered, and is continuing to suffer, great mental anguish due to the fact that she was unable to be with her mother during the last days of her life. She alleged damages in the sum of $2,500, for which she prayed judgment.
The defendant, in its answer, denied the material allegations of the complaint, and set up that on July 1, 1925, Lehnen and Berg applied to John Daniels, agent of the railway company at Scranton, Ark., to send a message via defendant's line to Joe Baltz at Pocahontas, Okl.; that John Daniels informed them that he was not the agent of the defendant; and that he was not authorized to receive messages for transmission, and told them that they could telephone the message to defendant's agent at Paris, Ark.; that Lehnen and Berg thereupon requested Daniels to do the telephoning for them; that Daniels telephoned the message set forth in plaintiff's complaint to the defendant company at Paris, Ark., addressed to Joe Baltz at Pocahontas, Okl., and repeated the message to the agent of the defendant at Paris, Ark., naming Joe Baltz as the addressee, and giving his address as Pocahontas, Okl.; that the defendant promptly transmitted the message to its agent at McAllister, Okl., being the nearest office of the defendant to Pocahontas, Okl.; that the defendant, not being able to locate the addressee and to deliver the message by telephone, mailed the same from McAllister, Okl., addressed to Joe Baltz, Pocahontas, Okl.; that Pocahontas, Okl., was what is known as a free star station; that is, a station where messages are delivered only by telephone. The defendant alleged that, if the message was intended by the plaintiff to be delivered to the addressee at Pocahontas, Ark., instead of Pocahontas, Okl., the mistake was due to the negligence of the plaintiff or her agents; that, if the message had been properly addressed to the addressee at Pocahontas, Ark., where the defendant maintains an office and agent, the same could and would have been delivered to the addressee without any delay whatever. The defendant alleged that the message as delivered to, and received by, it was an interstate message from Paris, Ark., to Pocahontas, Okl., and that a recovery of damages for mental anguish for failure to deliver such a message would be contrary to article 1, § 8, of the Constitution of the United States, and the acts of Congress, which the defendant pleaded in bar of plaintiff's right to recover in this action.
After the filing of the answer, the plaintiff amended her complaint, and alleged that the message mentioned was delivered over the telephone to the agent of the defendant at Paris, Ark., and that the failure to deliver the same to the plaintiff was because of the negligence of defendant's agent at Paris and defendant's other agents.
The witnesses Lehnen and Berg testified for the plaintiff. Their testimony tended to sustain the allegations of the complaint. They stated, in substance, that they went to the railroad depot at Scranton, Ark., and requested the company's agent, John Daniels, to send the message mentioned. The agent wrote out the message. They told him to send it to Pocahontas, Ark., and repeated it to him twice, and he repeated it over the phone twice. Witnesses heard him give the address over the phone as Pocahontas, Ark. They did not know whether the operator of the phone at Paris repeated the message back to Daniels or not. Witness paid the station agent a fee of $1.10 for the transmission of the message. Witnesses were about ten feet from Daniels, and, although he held the receiver about four inches from his mouth, he talked loud and plain, and they could hear what he said. Daniels told the witnesses that it was not a telegraph office, but that he would telephone the message as a matter of accommodation.
The undisputed evidence showed that it was the custom of the railway station agent at Scranton to collect for telegraph messages originating at that station. It is conceded that the telegram was not delivered.
The plaintiff testified, in substance, that she was the Agnes referred to in the telegram mentioned in her complaint. She had made arrangements to be notified in case her mother became seriously ill. She was to go down there right away in case something serious should come up She was to be notified by telegram, which was to be sent to Joe Baltz, who was to deliver the message to her. If the message had been delivered on the day of its date, July 1st, she would have gotten to her mother's bedside on July 2d by 3 o'clock. Witness went to Scranton where her mother lived on July 6th, and found that her mother was dead. They were making preparations for the funeral, and were about ready to take her out to be buried. Her mother talked about witness all the time during her last illness. The failure to get the telegram had an awful effect on witness. She would not have taken any money, and nothing would have kept her from going to see her mother if she had known her mother was so ill. Witness was the youngest child, and stayed with her mother the longest, and was her favorite. Witness stayed with her mother four years after witness was married, and witness' mother seemed to think more of her than she did the rest of the family. Nothing would have kept witness from going to see her if she had known she was so low. Witness fainted when she realized she could not see her mother alive—became unconscious. The thought that her mother was dying and wanted to see witness and witness not getting to see her affected witness more than her mother's death. Witness had not seen her mother for about a year, but heard from her each week two or three times until the last week. After they had sent the telegram, they thought that witness would come, and witness did not hear from them.
The testimony of the witnesses on behalf of the defendant tended to prove the allegations of its answer. John Daniels testified, and his testimony was substantially the same as that of the witnesses for the plaintiff, as to the receipt by him of the message to be telephoned to the defendant's agent at Paris, but he contradicted them flatly as to the place the message was to be sent. He states that the message was addressed to Mrs. Phillip Baltz at Pocahontas, Okl.; that is the way he wrote the message down; and that is the way he phoned it to the Western Union operator at Paris. The defendant's operator at Paris repeated the message to witness in that form. Witness did not tell him to change it in any way, nor was he notified by Berg or Lehnen at the time of any error that was being made. Witness does not know whether they heard the telephone message or not, but they were at the window possibly ten feet away; that was the only message that Lehnen and Berg brought to the witness. The message was addressed to Mrs. Phillip Baltz, Pocahontas, Okl. On cross-examination the witness testified that the message was addressed to Joe Baltz, and the substance of the message was, "Please notify Agnes mother very low and come at once." Lehnen and Berg paid the witness the fee for sending the message, and witness sent the fee to the operator at Paris. Witness generally did that when he sent telephone messages. Witness had been agent there for two years, and had been receiving and sending messages in that manner during that time.
Defendant's telegraph operator at Paris was a witness. He testified that he handled telegraph messages at that point. He remembered receiving the message from Daniels at Scranton by phone on July 1, 1925. He did not remember exactly the contents, but the message was to notify somebody of the serious illness of a woman at Scranton. It was addressed to Joe Baltz at Pocahontas, Okl. Witness took the message down as it was dictated to him. After refreshing his memory by an examination of the message, he stated that the message was the same as that set out in the complaint. Witness relayed the message to Ft. Smith, and from there it was forwarded to its destination at Pocahontas, Okl. Witness repeated the message back to Daniels over the telephone, and gave the address as it was given to him as Pocahontas, Okl. No correction was made in the address given. Witness never received any message by telephone or otherwise from John Daniels addressed to Joe Baltz at Pocahontas, Ark. Witness sent the message right off after h...
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