Western Union Telegraph Co. v. Ford

• Decision Date: 03 February 1906
• Citation: 92 S.W. 528,77 Ark. 531
• Parties: WESTERN UNION TELEGRAPH COMPANY v. FORD
• Court: Arkansas Supreme Court

92 S.W. 528

77 Ark. 531

WESTERN UNION TELEGRAPH COMPANY v. FORD

Supreme Court of Arkansas

February 3, 1906

Appeal from Miller Circuit Court; JAMES S. STEEL, on exchange of circuits; affirmed.

STATEMENT BY THE COURT.

This is an action to recover damages for delay in the delivery of a telegram.

The plaintiff resided at Texarkana, Arkansas, and had a sister at Carthage, Mo. Her sister died on January 1, 1904, at an early hour in the morning, and about 11:30 o'clock on that day Jennie Harding, a niece of plaintiff, delivered to defendant company for transmission the following telegram directed to plaintiff:

"Joplin Mo., January 1, 1904.

"Mrs Belle Ford, Texarkana, Ark.:

"Your sister is dead. Can you come? Answer to Carthage.

"[Signed] Jennie."

The message was received at the Texarkana office at 1:45 the same day, but was not delivered to plaintiff until the following day, January 2, 1904, about ten o'clock. It is alleged that the servants of defendant were guilty of negligence in the delivery of the message; that the funeral of plaintiff's sister was held on January 2, at Joplin; that plaintiff could and would have left Texarkana at 7:30 p. m on January 1, so as to reach Joplin in time to be present at the funeral, had she received the telegram in time, and that on account of the disappointment in not being able to attend her sister's funeral, she suffered great anguish, and thereby sustained damages in the sum of $ 1,000, for which she prayed judgment.

The defendant answered, denying negligence on the part of its servants, and alleging that the delay in delivery of the message was due solely to the negligence of the sender in failing to give a sufficient address of the sendee.

The jury returned a verdict in favor of the plaintiff in the sum of $ 500 damages, and the defendant appealed.

Judgment affirmed.

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

1. The court erred in refusing defendant's second instruction. Observance of holidays is conceded, and a telegraph company has the right to fix its own reasonable hours for receiving, transmitting and delivering messages. Crosswell on Elec., §§ 421, 422; 103 Ind. 505; 54 S.W. 963; Id. 829; 47 A. 881; 62 S.W. 136; 31 S.W. 211; 66 S.W. 17; Ib. 592; 43 S.W. 1053; 32 S.E. 1026; 24 F. 119; 8 Bissell, C. C. 131.

2. It was error to refuse defendant's tenth instruction. The contract of transmission was made in Missouri, and the rights of the parties are governed by the laws of that State. 37 S.W. 905; 135 Mo. 661; 45 S.E. 938; 133 N.C. 603; 50 S.E. 538; 29 Miss. 670; 78 S.W. 744; 74 S.W. 751; 78 S.W. 34; 80 S.W. 561; 116 Mo. 34; 49 S.E. 952.

3. Defendant having exercised all diligence possible under the circumstances in view of the improper address of the message and the signature thereto, appearing in evidence, the verdict is contrary to the evidence and the court's instruction. As to sufficient diligence in effort to deliver, see 74 S.W. 922; 43 S.E. 945; 43 S.W. 1033; 60 Id. 687; 74 Id. 1098; 92 Ga. 607; 2 N.E. 709; 3 So. 566; 74 S.W. 943; 62 S.W. 136; 102 Pa.St. 164; 68 Miss. 1; 27 Am. & Eng. Enc. Law, 1032-3.

W. H. Arnold, for appellee.

1. The statute authorizes recovery in this class of cases. Kirby's Digest, § 7947. Though the contract for transmission and delivery of the message was made in Missouri, the negligence complained of occurred in Arkansas, and the contract is governed by the law of Arkansas. 84 S.W. 764, and cases cited; 64 Ark. 538; 13 So. 880; 50 Ark. 155; 67 Ark. 295; Watson on Damages, 681; 154 U.S. 190; 54 S.W. 685; 68 S.W. 526; 162 U.S. 650; 64 S.W. 1063; 108 Tenn. 39; 51 S.E. 119.

2. Defendant's second instruction was not in response to the issues raised by the answers, and was properly refused.

OPINION

MCCULLOCH, J. (after stating the facts).

1. Appellant assigns as error the refusal of the trial court to give the following instruction:

"You are instructed that the defendant is justified in observing the usual holidays; and if you find that the delay in delivering the message sued on was due in any degree to the observance by the defendant of January 1 as a holiday, to that extent you will hold the defendant free from blame."

The rules of the company provide that on holidays the office hours shall be from 8 to 10 a. m. and from 4 to 6 p. m. Texarkana being the repeating station for messages en route to Texas, an operator remains on duty all day to keep the repeater in order, and the message in question was received at 1:45 p. m. by this operator, who placed it on a hook in the office, and no effort was made to deliver it to the sendee until the return of the delivery clerk to the office about 4:45 p. m.

A telegraph company may fix reasonable hours for the receipt and delivery of messages, and the question whether such regulation is reasonable or unreasonable is one of law for the court to declare. Western Union Telegraph Co. v. Love-Banks Co., 73 Ark. 205, 83 S.W. 949.

The regulation shown in this case to have been promulgated by the company, fixing office hours on holidays, seems to be reasonable, and it would have been the duty of the court, if requested, to have so declared to the jury. But the instruction in question does not embody any such declaration. It says nothing about reasonableness of the regulation, but tells the jury broadly that the company was free from blame if the delay was due to observance of the holiday. It was misleading, as the jury might have understood from it that observance of the holiday excused the company from diligence in delivering the message. Under the law the company was bound to exercise due diligence, consistent with its reasonable rules, in seeking to make a delivery of the message, and was liable for any negligence in this regard. Appellant cannot, without having asked for a proper instruction on the subject, complain of the refusal of the court to give an improper one.

2. It is contended that the evidence was not sufficient to sustain the charge of negligence against appellant, and that the delay in delivery of the message was due solely to the negligent failure of the sender to give a sufficient address of the sendee. This was a question of fact for the jury, and we think the evidence was sufficient to warrant the finding. The sender may have been guilty of negligence in failing to give a specific address, but the company accepted the address, and undertook to transmit it and to exercise due diligence in promptly delivering it. The deficiency in the address was a proper matter for the jury to consider, and doubtless they did consider it in determining whether diligence was exercised in searching for the addressee to deliver the message. But a finding of negligence on the part of the sender in this respect would not have excused the company from a negligent failure to deliver. The proof shows that the plaintiff was living with her husband, J. A. Ford, only a few blocks from the telegraph office in the business portion of the city of Texarkana. The name of J. A. Ford appeared in the telephone directory and upon a sign over the door of his place of business. The whereabouts of plaintiff were ascertained the next day, and the message delivered to her by the messenger through inquiry at her husband's place of business. Her name, stated in the face of the message, indicated that she was a married woman. The jury could rightfully conclude that due diligence required the servants of the company to inquire for plaintiff of a man bearing the name of Ford who was so accessible by telephone as her husband was shown to have been. We cannot say that the jury were warranted in finding negligence under these circumstances.

3. Learned counsel next contend that there can be no recovery in this case because the message was sent from a point in Missouri where the law does not authorize recovery of damages for mental anguish unaccompanied by physical suffering. An instruction to this effect was asked by appellant and refused by the court. The statutes of this State provide that "all telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company." Kirby's Digest, § 7947. The cause of action arose in this Sate by reason of the negligent act in failing to promptly deliver the message having...