Western Union Telegraph Co. v. Pope
| Decision Date | 03 November 1924 |
| Docket Number | 212 |
| Citation | 265 S.W. 964,166 Ark. 122 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. POPE |
| Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; James H. McCollum, Judge; reversed.
Judgment reversed.
Francis R. Stark, Rose, Hemingway, Cantrell & Loughborough, and J. H. & D. H. Crawford, for appellant.
The verdict is contrary to the evidence. There was no obligation on the part of the telegraph company to deliver the message beyond the free delivery limits, except upon agreement, at the sender's request, and upon the payment of the expense thereof, and, in that case, without liability on the part of the company. 161 S.W. 369; 89 Ark. 402. It may be conceded that Bandy went to Smackover frequently, and that he was well known, particularly to a certain grocery firm there. There was no proof that he was there on December 7. 85 So. 349. The telegraph company is not required to insure delivery, nor to search out every conceivable place in a community in order to deliver a message. 74 S.W. 922; 148 S.W. 157. The mailing of the message, properly addressed, is a good and sufficient delivery. 91 S.W. 257; 90 So. 793. In this case it was not known by the contracting parties that the sendee lived beyond the free delivery limits, and no custom to deliver beyond the limits was in evidence. The telegraph company was justified in acting upon the assumption that the sendee, or Bandy could be found within the free delivery limits of the office at Smackover, and it cannot reasonably be contended that the parties had contracted for a delivery elsewhere. 189 S.W 1008; Jones on Telegraph & Telephone Companies, 2d ed. 423 § 302, and note 203; 89 Ala. 510, 18 Am. St. Rep. 148 et seq.; 144 Ala. 618, 113 Am. St. Rep. 66.
J. O. A. Bush, for appellee.
If the defendant was unable to deliver the message, for any cause, it was its duty to notify the sender that the message could not be delivered. 100 Ark. 6; 91 Ark. 602; 16 L. R. A. (N. S.) 871, note; 61 S.E. 653; 139 N.C. 369, 52 S.E. 50.
When it was shown that the telegram was delivered to appellant on the morning of December 7, and paid for, and that it was never delivered, the burden was cast upon the appellant of proving that it was not its fault. 100 Ark. 296; 110 Ark. 180.
Appellee sued for damages to compensate the mental pain and anguish suffered by him on account of the alleged negligent failure of the appellant telegraph company, hereinafter referred to as the company, to deliver to him a telegram advising him of the illness of his wife, it being alleged that this negligence was the proximate cause of his failure to be present during the last illness of his wife. He recovered judgment, and the company has appealed.
There was an amended complaint in which it was alleged that the company had received for transmission three messages, and that there was a negligent failure to deliver each of them.
Appellee was employed as a laborer by Kimball & King, who were engaged in drilling an oil well two or three miles from Smackover, and, during this employment, he boarded at a boarding house kept by a man named Bandy, who had altogether about a hundred boarders.
Appellee's home was in Okolona, Arkansas, where he left his wife in good health when he went to Smackover to secure employment. His wife became ill, and grew rapidly worse, and the attending physician announced to the family that his patient would die, and her husband should be notified at once. At the request of the family, Dr. Alford, the attending physician, delivered to the company's agent at Okolona the following message:
The message was carried to the company's agent by a boy named Chester Killingsworth, who was unable to furnish a more definite address, and the agent and the doctor had a conversation over the telephone in regard to this message.
The customary charge was paid by the doctor, and there is a conflict in the testimony between the doctor and the agent as to what was said by the agent concerning the sufficiency of the address. The agent testified that he called the doctor on the telephone and advised him that the address was insufficient, and that the message would probably not be delivered unless a more definite address was given, and that, when the doctor stated that he could not furnish a more definite address, he (the agent of the company) wrote on the message before sending it that it was "Accepted sender's risk account insufficient address." The doctor's testimony is in conflict with this statement.
This message was received for transmission at 11:25 A. M. December 7, and was promptly transmitted to Smackover. The company's agent at the last-named place testified that he saw, when he read the message, that the address was indefinite, so he made two copies of it. He gave one copy to the delivery boy and took the other himself. He detailed the inquiry he made to find the addressee of the telegram, and it is contended by the company that the agent made even greater efforts to deliver the message than ordinary diligence would have required him to make. The agent at Smackover testified, that, when he failed to locate the addressee, he mailed the telegram, placing the address on the letter given in the telegram. The letter containing the telegram was not delivered, but was returned to the agent at Smackover, who introduced it in evidence. It is contended by the company that the postmark on the envelope shows that the letter was mailed December 7. The agent at Smackover admitted that he did not send a service telegram to the Okolona office until December 9, advising that the message had not been delivered.
The undisputed testimony shows that, on account of the discovery of oil, Smackover grew in a few months from a little village of about a hundred population to a busy bustling city of twenty-five to thirty thousand, and that, on account of the enormous traffic incident to this growth and the development of the oil fields, the streets in the city and the roads in the country had been rendered almost impassable, yet it was also shown that "Bandy," with whom appellee boarded, came to Smackover daily, and was in that city on December 7, 8 and 9, and on each day went to the postoffice and received mail, and the letter said to have been addressed in his care was not delivered to him by the postmaster. It is contended by appellee that the envelope offered in evidence by the company's agent at Smackover shows an erasure before the figure 7, under the abbreviation "Dec.," and that the letter was not in fact mailed until December 27, which was the day after the institution of this suit.
Jesse Pope, a sixteen-year-old son of appellee, testified that he had been at work with his father at Smackover, and that he left there on the 8th to return home, where he arrived on the 9th. His home was about a mile and a half from Okolona, and upon arriving there, he found his mother desperately ill, and, knowing that the telegram to his father from the doctor had not been delivered, he proceeded to send another, and this one was sent between eleven and twelve A. M. on December 9. This witness testified that he did not know any one in...
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Western Union Telegraph Co. v. Pope
...deliver a telegraphic message informing appellee of the serious illness of his wife. There was a former appeal of the case to this court (166 Ark. 122), and the judgment was reversed, and cause remanded for a new trial. The facts are set forth with accuracy and in detail in the former opini......