Western Union Telegraph Co. v. Hollingsworth

• Decision Date: 13 May 1907
• Citation: 102 S.W. 681
• Parties: WESTERN UNION TELEGRAPH CO. v. HOLLINGSWORTH.
• Court: Arkansas Supreme Court

102 S.W. 681

WESTERN UNION TELEGRAPH CO. v. HOLLINGSWORTH.

Supreme Court of Arkansas.

May 13, 1907.

Appeal from Circuit Court, Bradley County; Z. T. Wood, Judge.

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

Appellee, E. A. Hollingsworth, was a minister, and lived at Camden, and his brother Hugh at Bearden. These towns are close together but are not directly connected by railroad. A hack line ran between them. Mr. E. A. Hollingsworth was an older man than Hugh Hollingsworth, and had partially raised him, and was tenderly attached to him. Hugh Hollingsworth was a man of delicate health. On Sunday, the 5th, E. A. Hollingsworth received a letter stating that Hugh was sick with pneumonia, and the letter had in it this statement: "Tuesday will be the ninth day, and you know what that means." On Tuesday at 8:30 a. m. he received a telegram to the effect that his brother was at the point of death and wanted him to come at once. Owing to the inclemency of the weather and the creeks being up, he was advised not to make the trip, and did not go. On the 8th he tried to reach Bearden over the telephone, but was unable to get connection. He then sent a telegram to a friend inquiring of his brother's condition, as follows: "How is Hugh? If dead, when and where buried." He explained to the agent who received the telegram the condition of affairs. Mr. Reed, to whom this telegram was addressed, received it, and sent a reply saying, "Hugh is better tonight." This was about 8:30 p. m. on Wednesday, the 8th. The agent forgot to send this telegram, which seems to have been overlooked until a second telegram from Mr. Hollingsworth, inquiring about the condition of his brother, brought forth this forgotten answer, and it was delivered about 6 o'clock on the evening of the 9th, a delay of almost 24 hours. During this time Mr. Hollingsworth had suffered great anxiety of mind and had spent a sleepless night. His anxiety would have been relieved, had he received the telegram. He brought suit against the Western Union, and recovered a judgment for $250. The telegraph company has appealed.

Geo. H. Fearons and Rose, Hemingway, Cantrell & Loughborough, for appellant. J. G. Williamson and Bradham & Landers, for appellee.

HILL, C. J. (after stating the facts).

The principal question in this case is whether there can be a recovery under the mental anguish statute (section 7947 of Kirby's Digest) for the negligent failure to deliver a telegram relieving mental anguish or suffering. As is well known, the mental anguish doctrine originated in Texas, and this court refused to follow it; and subsequently the Legislature enacted the statute in question, making mental anguish or suffering an element of damages in actions for negligence in receiving, transmitting or delivering messages. Naturally the court will go to Texas and other states which have adopted the mental anguish doctrine in order to determine its full force and effect. But it cannot be said that the Legislature intended by this statute to adopt the mental anguish doctrine of any one state; for it prevails in many, and there are many differences in the application of said doctrine by the courts in the states in which it prevails, and inconsistencies in its application, even in the same state. It is necessary, therefore, for the court to give the statute a reasonable construction, attempting to carry out the design of the Legislature in putting in force an element of damage for mental anguish and suffering for negligence in receiving, transmitting, or delivering messages, and not be bound by the vagaries and inconsistencies which prevail in jurisdictions where it obtains by judicial construction.

This exact question came before the Supreme Court of Texas in Rowell v. Telegraph Company, 75 Tex. 26, 12 S. W. 534, and the court said: "The damage here complained of was the mere continued anxiety caused by the failure promptly to deliver the message. Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most cases; but the cases are rare in which such emotion can be held an element of the damages resulting from the breach. For injury to the feelings in such cases the courts cannot give redress. Any other rule would result in intolerable litigation." This case has been expressly followed in North Carolina, another state in which the mental anguish doctrine has prevailed by judicial construction. See Sparkman v. Telegraph Co., 130 N. C. 447, 41 S. E. 881. Other cases are cited in the brief of appellant where this...