Western Union Telegraph Co. v. Freeman
| Decision Date | 08 November 1915 |
| Docket Number | (No. 217.) |
| Citation | 180 S.W. 743 |
| Parties | WESTERN UNION TELEGRAPH CO. v. FREEMAN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Lee County; J. M. Jackson, Judge.
Action by Mrs. Dell Freeman against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals Modified and affirmed.
Appellee recovered judgment against the appellant in the sum of $1,000 damages for mental anguish which she alleged accrued to her by reason of the negligence of the appellant in delaying the transmission and delivery of certain telegrams. One of these telegrams was from appellee's mother, delivered to appellant's agent at Hot Springs about 8 o'clock on the morning of October 26, 1913. It was addressed to appellee at Moro, Ark., and read: "Roxie is very low; come at once." Roxie was the sister of appellee. She died at 2:30 p. m. on October 26th. The other telegram was delivered by the appellee's husband to appellant's agent at Moro, Ark., about 8:20 on the morning of October 27, 1913, and was addressed to her mother at Hot Springs. It read: "Wait if possible; will be at Bear to-night."
Appellee alleged that by reason of the negligence of the appellant in failing to transmit and deliver the first telegram she was denied the comfort of seeing her sister before the latter's death, from which she suffered mental anguish, and that on account of appellant's negligence in failing to deliver the last telegram she was denied the comfort of attending the funeral and viewing the remains of her sister.
Appellant answered, denying specifically the allegations of negligence, and set up that the first message was not transmitted and received at Moro between 8:30 a. m. and 4:30 p. m., appellant's office hours, because their wires to Moro were in bad condition, which made it impossible to transmit or receive messages over said wires between the hours mentioned above; that the wire trouble was not due to negligence or carelessness of the defendant; that the 26th of October, 1913, was Sunday, and under the rules and regulations of the company the office at Moro was not open for the receiving and transmission of messages between the above hours; that it would have been impossible for plaintiff to have arrived in Hot Springs on October 26th until after the death of her sister, if the message had been immediately delivered to appellee. Appellant also alleged that the delay in transmitting the message from appellee to G. M. Humphreys of October 27, 1913, was on account of wire trouble which was unknown to the appellant's agents and servants; that appellant's agent at Moro so advised appellee at the time the message was received at Moro for transmission to Hot Springs. Appellant further set up affirmatively that the messages were delivered to appellant to be transmitted under its rules and regulations, one of which is as follows:
"The company will not be liable for damages or statutory penalty where the claim is not presented in writing within sixty days after the message is received for transmission."
Appellant set up that appellee had not complied with this provision of the contract, and therefore was not entitled to maintain her suit.
George H. Fearons, of New York City, and Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, for appellant. E. H. McCulloch, of Little Rock, and H. F. Roleson, of Marianna, for appellee.
WOOD, J. (after stating the facts as above).
It could serve no useful purpose to discuss in detail the evidence on the issue of negligence. This was an issue for the jury, and there was testimony to sustain the verdict on that issue. The undisputed evidence, however, shows that, if the message of October 26th had been transmitted and delivered to appellee without delay, it would not have been possible for her to have reached her sister's bedside before she died, and therefore the damages for mental anguish which she alleged accrued to her on account of her not being able to see her sister before the latter's death passed out of the case. However, the jury were warranted in finding from the testimony that, if this telegram and the telegram of October 27th had been promptly transmitted and delivered, appellee could and would have attended her sister's funeral. The issue of negligence and the amount of damages arising on this branch of the case was presented to the jury in instructions which we find to contain no prejudicial error. There was a conflict in the evidence on this issue, and it was therefore one for the jury.
At the close of the testimony the appellant, among others, presented the following instruction:
"You are instructed under the law and the evidence in this case to find your verdict for the defendant."
Appellant contends that the undisputed evidence shows that the messages in suit were interstate messages, and that, such being the case, it was entitled to an instructed verdict, under the doctrine of Western Union Tel. Co. v. Johnson, 171 S. W. 859. In that case we followed the ruling of the Supreme Court of the United States in Western Union Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457, and dismissed the case because the trial court was advised from the message itself in suit that it was an interstate message. The issue as to the interstate character of the message was raised by the message itself. But in this case the messages on their face show that they were intrastate messages. Neither by the answer, the testimony, nor the instructions did the appellant raise the issue of interstate commerce in the court below. This was not even set up as one of the grounds in the motion for a new trial. The pleadings raised no such issue, and consequently the testimony was not directed to any such issue. The appellant's testimony was directed solely to the issue of negligence and to the other matters set up by way of affirmative defense. But nowhere did it attempt to show that the messages were interstate commerce. The only testimony that was adduced tending to show that these were interstate commerce messages was drawn out by appellee's counsel incidentally in the cross-examination of one of appellant's witnesses who had testified for the purpose of rebutting the testimony in appellee's behalf on the issue of negligence.
Now, the issue of negligence was raised in the pleadings and the testimony was directed to that issue. Appellant was contending in the court below that the undisputed evidence showed that the appellant was not negligent. It also contended that the appellant, even if negligent, was not liable, because the appellee had failed to comply with the provision of the contract requiring her to present her claim in writing for damages within 60 days after the messages had been filed with appellant for transmission. The trial court therefore could have only concluded, when appellant presented its prayer for a peremptory instruction, that such prayer had reference to the issues that were raised by the pleadings and the evidence.
It has been the uniform holding of this court not to reverse the trial court for errors to which its attention was not called. The trial court was doubtless familiar with the many recent decisions of this court following the decision of the Supreme Court of the United States in Western Union Tel. Co. v. Brown, supra, and if appellant, by its answer, or the testimony, followed by instructions, had called the attention of the court to the contention it now makes here for the first time, doubtless there would have been no necessity for this appeal. We are convinced from this record that the trial court did not rule and could not have ruled upon the interstate commerce character of the messages in suit. It would be manifestly unfair to the trial court to reverse it as for an error in a ruling which it did not make or have the opportunity to make. This would be allowing the appellant to hold in reservation masked batteries to be turned loose upon the trial court for the first time on appeal. Such cannot be done. Radcliffe v. Scruggs, 46 Ark. 96; Martin v. McDiarmid, 55 Ark. 213, 17 S. W. 877, and other cases collated in volume 1, Crawford's Digest, Appeal and Error, VIII, b, pp. 69, 70; Mutual Ins. Co. v. Latourette, 71 Ark. 242, 74 S. W. 300, 100 Am. St. Rep. 63; St. L., I. M. & S. R. Co. v. Boback, 71 Ark. 427, 75 S. W. 473; Newton v. Russian, 74 Ark. 88, 85 S. W. 407; Schenck v. Griffith, 74 Ark. 557, 86 S. W. 850; Little Rock Ry. & Elec. Co. v. North Little Rock, 76 Ark. 48, 88 S. W. 826, 1026, and other cases collated in volume 3, Crawford's Digest, Appeal and Error, VIII, b, p. 32 et seq.; Plummer v. Reeves, 83 Ark. 10, 102 S. W. 376; Jones v. Seymour, 95 Ark. 593, 130 S. W. 560; Brown v. Le May, 101 Ark. 95, 141 S. W. 759, and other cases cited in volume 4, Crawford's Digest, Appeal and Error, V, a, pp. 43, 44.
Since appellant filed an answer setting up other affirmative defenses, it must be treated as...
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