Western Union Telegraph Co. v. Freeman

• Decision Date: 08 November 1915
• Docket Number: 217
• Parties: WESTERN UNION TELEGRAPH COMPANY v. FREEMAN
• Court: Arkansas Supreme Court

180 S.W. 743

121 Ark. 124

WESTERN UNION TELEGRAPH COMPANY v. FREEMAN

No. 217

Supreme Court of Arkansas

November 8, 1915

Appeal from Lee Circuit Court; J. M. Jackson, Judge; judgment modified.

STATEMENT BY THE COURT.

Appellee recovered judgment against the appellant in the sum of $ 1,000 damages for mental anguish which she alleged accrued to her by reason of the negligence of the appellant in delaying the transmission and delivery of certain telegrams. One of these telegrams was from appellee's mother, delivered to appellant's agent at Hot Springs about 8 o'clock on the morning of October 26, 1913. It was addressed to appellee at Moro, Arkansas, and read, "Roxie is very low; come at once." Roxie was the sister of appellee. She died at 2:30 P. M. on October 26. The other telegram was delivered by the appellee's husband to appellant's agent at Moro Arkansas, about 8:20 on the morning of October 27, 1913, and was addressed to her mother at Hot Springs. It read "Wait, if possible; will be at Bear tonight."

Appellee alleged that by reason of the negligence of the appellant in failing to transmit and deliver the first telegram, she was denied the comfort of seeing her sister before the latter's death, from which she suffered mental anguish and that on account of appellant's negligence in failing to deliver the last telegram, she was denied the comfort of attending the funeral and viewing the remains of her sister.

Appellant answered, denying specifically the allegations of negligence and set up that the first message was not transmitted and received at Moro between 8:30 A. M. and 4:30 P. M., appellant's office hours, because their wires to Moro were in bad condition, which made it impossible to transmit or receive messages over said wires between the hours mentioned above; that the wire trouble was not due to negligence or carelessness of the defendant; that the 26th of October, 1913, was Sunday, and under the rules and regulations of the company the office at Moro was not open for the receiving and transmission of messages between the above hours; that it would have been impossible for plaintiff to have arrived in Hot Springs on October 26, until after the death of her sister, if the message had been immediately delivered to appellee. Appellant also alleged that the delay in transmitting the message from appellee to G. M. Humphreys of October 27, 1913, was on account of wire trouble which was unknown to the appellant's agents and servants; that appellant's agent at Moro so advised appellee at the time the message was received at Moro for transmission to Hot Springs. Appellant further set up, affirmatively, that the messages were delivered to appellant to be transmitted under its rules and regulations, one of which is as follows: "The company will not be liable for damages or statutory penalty where the claim is not presented in writing within sixty days after the message is received for transmission." Appellant set up that appellee had not complied with this provision of the contract, and therefore was not entitled to maintain her suit.

Judgment affirmed.

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

The court should have granted appellant's request for a peremptory instruction, because:

1. The messages were interstate messages, and as to such the Arkansas mental anguish statute is void. 114 Ark. 193; 174 S.W. 232; 115 Ark. 564; 174 S.W. 552.

We think the law is settled that where a message is sent from one point in the State to an addressee at another point in the same State, if, through the necessity of the case, owing to the manner in which the lines of the telegraph company are laid, it is necessary to send the message outside of the State to a relay station, such message becomes interstate commerce. 122 U.S. 347; 87 Ark. 562; 167 S.W. 96; 187 U.S. 617.

2. The undisputed evidence shows that the message of the 26th was filed at a time when it would have been impossible for the plaintiff to have reached Hot Springs in time to have seen her sister alive. The cause of action for failure to see her sister alive, is therefore, eliminated from the case.

There is nothing in the message sent on the 27th to put appellant upon notice of any mental anguish on the part of appellee for failure to see her sister's remains before burial.

3. The court erred in refusing to direct a verdict on appellant's special plea that no claim was presented within sixty days. The letter of Humphreys to the superintendent, was not sent either by appellee or her attorney, and does not come within the rule laid down by this court in the Moxley case, 80 Ark. 560; 86 Ark. 331.

E. H. McCulloch and H. F. Roleson, for appellee.

1. It is only by inference from the testimony that it can be said that the message was sent over a route, a portion of which was outside of this State. But if the testimony justified that conclusion, it would not be interstate commerce, since the message originated and was addressed to stations in this State. 145 U.S. 192; 113 N.C. 213; 27 L. R. A. 570; 18 S.E. 389; 21 S.E. 391, 27 L. R. A. 843; 220 U.S. 364, 55 L.Ed. 498.

But this is a defense which was not raised in the lower court, and appellant will not be permitted to raise it here. 88 Ark. 189; 101 Ark. 250; 103 Ark. 387.

2. If either the message of the 26th or of the 27th had been delivered in reasonable time appellant could have seen her sister's remains and have attended the funeral. In alleging and proving the failure to deliver the message of the 26th, appellee was not confined to showing that she suffered from failure to see her sister alive, but the nondelivery incurred against appellant all damages accruing by reason of such negligence.

The agent who personally delivered the message of the 26th to the same man who filed the message of the 27th for transmission, was bound to know that both messages related to the same matter.

3. The letter from Humphreys to the district superintendent of appellant of date October 30, 1915, gave all the details and circumstances connected with the failure to deliver the message, and informed the company that it was presented on behalf of appellee for mental anguish and placed the company upon notice of her claim for damages. This letter was a sufficient compliance with the requirement as to time of presentation of claim, and it was not necessary that this letter state the amount of the claim. 63 Ark. 331.

Moreover, the superintendent recognized and treated this letter as a claim, as appears by the correspondence.

WOOD, J. MCCULLOCH, C. J., not participating.

OPINION

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

It could serve no useful purpose to discuss in detail the evidence on the issue of negligence. This was an issue for the jury, and there was testimony to sustain the verdict on that issue. The undisputed evidence, however, shows that if the message of October 26 had been transmitted and delivered to appellee without delay, that it would not have been possible for her to have reached her sister's bedside before she died, and therefore the damages for mental anguish which she alleges accrued to her on account of her not being able to see her sister before the latter's death passed out of the case. However, the jury were warranted in finding from the testimony that if this telegram and the telegram of October 27, had been promptly transmitted and delivered that appellee could and would have attended her sister's funeral. The issue of negligence and the amount of damages arising on this branch of the case was presented to the jury in instructions which we find contain no prejudicial error. There was a conflict in the evidence on this issue, and it was therefore one for the jury.

At the close of the testimony the appellant, among others, presented the following instruction: "You are instructed under the law and the evidence in this case to find your verdict for the defendant."

Appellant contends that the undisputed evidence shows that the messages in suit were interstate messages, and that such being the case, it was entitled to an instructed verdict, under the doctrine of Western Union Tel. Co. v. Johnson, 115 Ark. 564, 171 S.W. 859. In that case we followed the ruling of the Supreme Court of the United States in Western Union Telegraph Co. v. Brown, 234 U.S. 542, 58 L.Ed. 1457, 34 S.Ct. 955, and dismissed the case because the trial court was advised from the message itself in suit that it was an interstate message. The issue as to the interstate character of the message was raised by the message itself. But in this case the messages on their face show that they were intrastate messages. Neither, by the answer, the testimony nor the instructions, did the appellant raise the issue of interstate commerce in the court below. This was not even set up as one of the grounds in the motion for a new trial. The pleadings raised no such issue, and consequently the testimony was not directed to any such issue. The appellant's testimony was directed solely to the issue of negligence and to the other matters set up by way of affirmative defense. But nowhere did it attempt to show that the messages were interstate commerce. The only testimony that was adduced tending to show that these were interstate commerce messages was drawn out by appellee's counsel incidentally in the cross-examination of one of appellant's witnesses who had testified for the purpose of rebutting the testimony in appellee's behalf on the issue of negligence.

Now the issue of negligence was raised in the pleadings, and the testimony was directed to that issue. Appellant was contending in the court below that the undisputed evidence showed that the appellant was not negligent. It also contended that ...