Western Union Telegraph Co. v. Chilton

• Decision Date: 09 October 1911
• Citation: 140 S.W. 26
• Parties: WESTERN UNION TELEGRAPH CO. v. CHILTON.
• Court: Arkansas Supreme Court

140 S.W. 26

WESTERN UNION TELEGRAPH CO. v. CHILTON.

Supreme Court of Arkansas.

October 9, 1911.

Appeal from Circuit Court, Mississippi County; W. J. Lamb, Special Judge.

Action by J. D. Chilton against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit by appellee to recover of appellant damages for mental anguish alleged to have been caused appellee through the negligence of appellant in failing to deliver a telegraph message informing appellee of the death of his child at Campbell, Mo. Appellee alleged that the message was delivered to the agent of appellant at Campbell, Mo., and the charges paid for transmission to appellee who was at that time at Chickasawba, Ark.; that, if the message had been delivered to him, he would have attended the funeral of his child.

The answer of appellant denied all the material allegations of the complaint. The testimony shows that on the morning of November 1, 1909, a friend of appellee delivered to the agent of appellant at Campbell, Mo., a telegram addressed to appellee at Chickasawba, Ark. The message was as follows: "Come home at once, your baby is dead." The witness stated that he handed the message to the agent and paid him 25 cents, the amount charged for transmission; that, "after he handed the message to the agent, he (the agent) placed it on the table before him and turned to the keyboard instantly and tapped on it a few times, and turned to the witness and said, `All right,' and he marked `O. K.' on the message"; that about three hours later he returned to ascertain if a reply had been received to the message. The agent stated that he had not received a reply, "but," said he, "I suppose they have got it." The appellee on the morning of November 1st was at the hotel about "half of a quarter" from the telegraph station. He did not receive a telegram advising him of the death of his child. On behalf of appellant it was shown that the most direct route for handling the message in controversy was through Paragould, that Paragould was the relay station for handling such messages, and that the customary way to send them was through Paragould. There were no stations on the Missouri side of the line from Campbell to Paragould between Campbell and the line. There were three or four on the Arkansas side through which the telegraph wires run. It was shown that the agent at Paragould did not on the 1st day of November or near that date handle the message in suit. But the witness for appellant also testified on cross-examination that "the two possible routes for the message would have been by way of Paragould, or Pine Bluff and Memphis." If it came by Memphis, it would have come to this Frisco office over here. If there had been some difficulty of the operator at Campbell getting the message by way of Paragould, he might and could have sent it around the other route. In that event, it would have come "to this office. It might have been transmitted by Black at Campbell, Mo., and come into Arkansas, and the negligence occurred in this state for all that witness knew. I suppose as a matter of fact they do sometimes send a message around the other way. In case there was some difficulty on the part of the operator at Campbell in getting the message through by Paragould, he might, and could, have sent it around the other way. Operators do not send messages, unless they get an answer to their call from the other end of the line. It would be the duty of the receiving operator to be where he could hear the calls of his station to take the messages." The witness had no other idea but that he was in his office on the 1st and 2d of November. The appellant duly objected and excepted to the ruling of the court in giving and refusing instructions. Reference will be made to these in the opinion. The verdict and judgment were in favor of appellee in the sum of $500.

Geo. H. Fearons, E. H. Mathes, and Rose, Hemingway, Cantrell & Loughborough, for appellant. G. A. Rodgers and C. M. Buck, for appellee.

WOOD, J. (after stating the...