Western Union Telegraph Co. v. Wilson

• Decision Date: 02 January 1911
• Citation: 133 S.W. 845
• Parties: WESTERN UNION TELEGRAPH CO. v. WILSON.
• Court: Arkansas Supreme Court

133 S.W. 845

WESTERN UNION TELEGRAPH CO. v. WILSON.

Supreme Court of Arkansas.

January 2, 1911.

Appeal from Circuit Court, Ouachita County; Geo. W. Hays, Judge.

Action by Lizzie E. Wilson against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Saturday, December 5, 1908, at about 5:20 p. m., R. L. Hopkins delivered to the agent of appellant at Longview, Tex., for transmission the following message: "To Mr. Sylvester Hufstedler, Camden, Ark. Henry died here to-day. Find out whether mother wants him brought to Malvern or not." "Henry" was the brother of the sender of the message, and appellee was their mother. The message was received by the agent of appellant at Camden, Saturday, December 5, 1908, at 5:52 p. m. The message was given to the messenger boy at 5:55 p. m. that day. He did not know Hufstedler, or where he lived, looked in the only directory in town, went to the post office, found it closed, and inquired of the only man he found there. He asked Mr. Terrell and Mr. Earl at Terrell & Goodgame's, asked at Stearn's meat market, at Gee's grocery store, and McDonald's saloon, made inquiries at most of the stores on the street from 6 until 7:30 p. m. He went to nearly all the business houses in the city. He went to the Hotel Ouachita, the Brooks Hotel, and the Riverside Hotel. These were about all the places he could remember. He did not inquire of any of the preachers, teachers, or policemen. Terrell & Goodgame's and McDonald's saloons are about a quarter, or a little over, of a block from the telegraph office. Gee's grocery store is about the same distance from appellant's office. He did not inquire at Proctor's or McDonald's furniture store, nor at Reeves' grocery store. He did not go to Rumph & Tyson's and Carson's stores, nor to the Newton Hotel; these were further down. He did not remember whether he inquired at Lide & Bros.' or Stark's grocery store, Jackson's, Proctor's, McRae's. Near the Iron Mountain Depot McRae had a warehouse, and Wood had a grocery store. He did not go over there to inquire, nor did he ask either of the depot agents that night. Those he mentioned were the only ones he could remember that he made inquiry of as to where he might find the sendee of the message. The messenger boy was 14 years of age; he had lived in Camden all his life and had been in the service as messenger boy four months. The messenger boy made inquiry for about an hour after he received the message and then returned to the telegraph office; went out the next morning to the hotels, and made inquiry of several people that day, but could not tell who they were. The agent receiving the message testified that when he returned from supper to the office the messenger reported that he was unable to find the party. Then the agent inquired around town himself. He asked the clerk at the post office, the clerk at Terrell & Goodgame's saloon, and several others he did not remember; made several inquiries but could not find out anything about Hufstedler. The agent went out to make inquiry himself, because the boy reported at 7 o'clock that he was unable to find Hufstedler, and the message was important. The agent was well acquainted in Camden, but did not know Hufstedler; had never heard of him, and could not find anybody that afternoon or night that knew him.

An employé of the Southwestern Telephone Company testified that he had a call for Sylvester Hufstedler on Sunday, December 6th, and that he tried to find him, but was unable to do so, and had to call up Longview, Tex., to find out his specific address. He stated that the telephone operator asked some people around town, but could not locate Hufstedler from them. Hufstedler's name was not in the telephone directory, nor was it in any directory.

Hufstedler lived about seven or eight blocks from the telegraph office and about three and a half blocks from the Iron Mountain Depot. He had a family and was keeping house. He lived in South Camden, and there were several residences on the same street he lived on. It was as thickly settled as the north or east part of the town. He had resided in Camden at that time about four months. He was section foreman of the Iron Mountain Railway Company, and a large part of the section where he worked was within the limits of the town. His work required him to be away from home in the day, but he was usually home at nights and on Sundays. Hufstedler had two children, aged respectively 9 and 14 years, in the high school. The larger part of his groceries he purchased from the store of Reeves & Son, located in the city of Camden, diagonally across the street from the telegraph office, not further than 200 yards. In this store five men were employed, each of whom knew Hufstedler, and where he lived, and the proprietors of the store were the kinsmen of the telegraph messenger boy.

Hufstedler testified as follows: "December 5, 1908, I knew all the people that worked in Reeves' store. I knew Mr. Wood who had a grocery store in South Camden, and also Mr. Jack Thornton. I believe I knew some one in Levy's drug store. I got my mail at the free delivery at the post office. I knew the man's name who waited at the window, Mr. Lockhart; he knew my name, and would give me my mail without my calling any name when I would go to the window. I belonged to the lodge, A. O. U. W., and prior to December 5, 1908, had attended the meeting of the lodge where there were 15 or 20 members there. I was introduced to all of the strangers that came into the lodge. When I came to town I boarded for two weeks here; I was in town every night. I do not know whether I was acquainted with all the preachers in town or not; I knew Brother Treadway, the Baptist preacher, and Brother Watson, the Methodist preacher. There were three men employed in the Iron Mountain Depot. Alonzo Whyte was the yard clerk. I do not think I can call over any more people I knew in Camden prior to December 5, 1908."

A policeman testified that he knew Hufstedler, that the witness generally went home about 10 o'clock at night, that his business was on the streets going from one place to another, sometimes in the residence portion of the town. He knew the vicinity in which Hufstedler resided, and could have directed anybody to his home. Neighbors living close to Hufstedler testified to knowing him, and one of them said he was down town Saturday night, December 5th, and if any one had asked him about Hufstedler, he could have told where he lived. Camden was a city at that time of about 5,000 inhabitants. The message was delivered at the residence of Hufstedler Monday morning.

R. L. Hopkins the sender of the message, would have brought the body of his brother to Malvern for burial had he received a reply to his message, and appellee would have attended the funeral of her son at Malvern, if he had been buried there.

The appellee brought this suit, alleging that appellant was negligent in failing to deliver the telegram, and R. L. Hopkins, failing to receive a reply to his message, had the body of the plaintiff's son, Henry, buried at Longview, Tex., on the 6th of December, 1908, without the knowledge of the plaintiff and contrary to her wishes and to her regret; that if the message had been delivered to the addressee, immediate directions would have been telegraphed to bring the body of her son to Malvern, Ark., for interment, and that she would have attended the...