Western Union Telegraph Co. v. Moxley

• Decision Date: 09 July 1906
• Citation: 98 S.W. 112,80 Ark. 554
• Parties: WESTERN UNION TELEGRAPH COMPANY v. MOXLEY
• Court: Arkansas Supreme Court

98 S.W. 112

80 Ark. 554

WESTERN UNION TELEGRAPH COMPANY v. MOXLEY

Supreme Court of Arkansas

July 9, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

STATEMENT BY THE COURT.

The plaintiff, J. S. Moxley, resides in the city of Little Rock Arkansas, and brought this suit in the circuit court of Pulaski County against the defendant, Western Union Telegraph Company, to recover damages for alleged negligent failure to deliver a telegram sent to him from Cairo, Ill., acquainting him of the condition of his wife's father, who was seriously ill at Cairo. The message was in the following words.

"Cairo Ill., June 13, 1903.

"J S. Moxley, Little Rock, Ark.

"Mr Robertson's condition same. You had better come at once.

(Signed)

"A. H. STAEHLE."

Plaintiff testified that on June 12th, he communicated with his brother-in-law, Staehle, in Cairo, by long distance telephone, and the latter promised to telegraph him early in the morning of the 13th as to condition of his wife's father; that he made repeated inquiry for the message at defendant's office in Little Rock during the day and left his address at the office, but that the message was not delivered. The message was received at the Little Rock office at 8:40 a. m. on the 13th, but was not delivered. Plaintiff also testified that he suffered great mental anxiety and anguish throughout the day, and started to Cairo that night without having received the message.

Defendant answered, denying the negligence and the mental anguish, and set up that the telegram was sent subject to the following conditions, which it alleged that plaintiff failed to comply with:

"The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission."

The plaintiff claims that he complied with the foregoing condition by mailing the following communication to defendant:

"Little Rock, Ark., July 7, 1903.

"Manager Western Union Telegraph Company,

"Little Rock.

"Sir: I beg to hand you herewith papers concerning the nondelivery of a message addressed to me, June 13, 1903. To state this case briefly, I will say that my wife's father was lying at the point of death, at Cairo, Ill. On June 12th I communicated with Cairo by means of the long distance 'phone, and my brother-in-law, A. F. Staehle, advised me that he would wire me early in the morning of the 13th as to the condition of my wife's father. Knowing that the wire would be here for me, I made every effort possible to get it, as you will note from the reference attached to the copy of telegram. I called twice personally, twice by 'phone and sent a note by one of your messenger boys at 1:20 p. m., but all without result. Not having heard anything at 6:30 p. m. I was forced to use the long-distance telephone, at a cost of $ 1.05, after having had a day of suspense and one of extreme worry of my life. The nondelivery of this message caused much annoyance, and I would thank you to look into the matter, and ascertain and advise me who is at fault. The whole trouble appears to be at this end of the line. In addition to locating the trouble, will say that I shall also expect to have the cost of the message refunded, as well as the amount expended for long-distance conversation.

"Will you kindly give this your careful consideration, and advise at the earliest date practical?

"Very respectfully,

"J. N. MOXLEY"

He testified that when he mailed this letter he did not know that he was entitled to recover for mental anguish by way of damages.

There was a jury trial, and verdict in favor of plaintiff for $ 300.

Judgement affirmed.

Geo. H. Fearons and Rose, Hemingway & Rose, for appellant.

1. The message was sent subject to the sixty-day clause, which appeared on the message both as sent and received. No demand for damages, save for the cost of the message, having been made within the sixty days, plaintiff can not recover in this action. 54 Ark. 221; 62 Pa.St. 83; 65 N.Y. 163; 57 Wis. 562; 33 Minn. 227; 95 Ind. 93; Ib. 228; 17 Mo.App. 257; 57 Kan. 230; 56 Mo.App. 192; 63 Tex. 27; 79 Tex. 65; 39 F. 181; 11 Col. 335; 117 N.C. 436; 7 S. Dak. 623; 94 Tenn. 422; 33 S.W. 89; 66 N.W. 1040; 25 So. 910; 63 S.W. 172; 113 Ga. 1017; 136 F. 499.

2. Only a blood relative can recover for injuries to feelings unless it is affirmatively shown that the telegraph company was advised of the existence of affection between relatives by marriage. 88 Tex. 94; 30 S.W. 896; 30 S.W. 298; 34 S.W. 649; 39 S.W. 198; 54 S.W. 830; Ib. 829; 31 So. 78; 75 S.W. 482.

3. Plaintiff having reached the bedside of his father-in-law before his death and while he was still conscious, there was no basis for a recovery of more than nominal damages. 75 Tex. 26; 10 Tex. Civ. App. 226; Ib. 229; 91 Tex. 206; 44 S.W. 538; Ib. 744; 59 S.W. 1127; 67 S.W. 515.

J. H. Harrod, for appellee.

1. Appellee's letter of July 7th entirely accomplished the purpose of the sixty-day clause, and gave the company fair opportunity to investigate the case. 95 Tex. 638.

2. The act under which this suit was brought is not limited in its application to relations by blood or to relations of any kind. Kirby's Digest, § 7947.

3. That appellee afterwards saw his father-in-law alive and conscious can have no bearing on the mental anguish he sustained while waiting for the telegram, nor mitigate the damages.

Rose, Hemingway, Cantrell & Loughborough, for appellant in reply.

Moxley's letter presents no claim for mental anguish, and is clearly no compliance with the contract. 68 S.W. 549; 82 S.W. 484.

Geo. H. Fearons and Rose, Hemingway, Cantrell & Loughborough, for appellant on rehearing.

The sixty-day limitation in the contract is this: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission." It is upheld, 54 Ark. 221, as a reasonable stipulation. If it is enforced, it should be enforced as it is written. Appellant is entitled to have the term "claim," as used in the stipulation, given its reasonable meaning. For interpretation, see 87 Me. 231; 32 A. 887. The stipulation requires, not merely that the telegraph company be notified of the delay, but that the claim of the aggrieved party be set forth with sufficient clearness to show what damages he claims. 68 S.W. 549; 94 Tenn. 448; 58 Ill.App. 564; 34 S.W. 783.

OPINION

MCCULLOCH, J., (after stating the facts.)

1. Appellant contends that appellee is barred from recovery by failing to comply with the condition requiring presentation of claim for damages within sixty days.

This stipulation has been held to be valid by this court in Western Union Telegraph Co. v. Dougherty, 54 Ark. 221, 15 S.W. 468, and is generally upheld as reasonable by the courts of the country.

We have said in Western Union Tel. Co. v. Ford, 77 Ark. 531, 92 S.W. 528, and Arkansas & La. Ry. Co. v. Lee, 79 Ark. 448, 96 S.W. 148, that suits against telegraph companies in this State to recover for mental anguish caused by negligence in failing to receive, transmit or deliver messages are not dependent upon contract, but that the right of action is conferred by the statutes of this State. This does not mean, however, that the service in transmitting and delivering the message rendered by the telegraph company is not performed under contract, and that the contract may not contain reasonable stipulations which will bind the sender and also the addressee for whose benefit it is sent. On the contrary, we hold that the stipulation, which is reasonable, applies to claims under the statute for damages for mental anguish.

The stipulation does not, however, require the amount of the damages claimed to be asserted in the notice to the company. A reasonable interpretation of the stipulation is that it requires only notice to the company of the negligence of its servants in failing to receive, transmit or deliver the message. Its object is to require notice of the negligent act to be given so that the company may have an opportunity to investigate and ascertain whether or not its servants have been negligent, as claimed.

As was said by the Supreme Court of North Carolina in Sherrill v. Western Union Telegraph Co., 109 N.C. 527: "It is a reasonable requirement, enabling the company to inquire into the nature and circumstances of a mistake in or of the delay or non-delivery of the message while the matter is still within the memory of the witnesses. In view of the number of telegrams constantly passing over the wires, some such stipulation is absolutely necessary to protect the company from imposition. It is not a statute of limitations restricting the time within which action may be brought."

This is the interpretation placed by this court upon a similar stipulation in a railroad bill of lading. Kansas & A. V. Rd. Co. v. Ayers, 63 Ark. 331, 38 S.W. 515. The notice given by appellee fully apprised the company of the alleged negligence and asserted a claim for damages. He did not then claim damages for mental anguish for the reason, as he states, that he did not know that the law allowed such damages. This omission did not preclude him from thereafter claiming such damages.

2. It is urged by appellant that damages can not be recovered for mental anguish concerning those not related by ties of blood unless at the time of sending the message notice was given to the company, in the face of the message or otherwise, of the existence of such relationship as would give rise to mental suffering in the event of delay in the delivery of the message. Counsel argue that this principle must...