Western Union Telegraph Co. v. Alford

• Decision Date: 08 December 1913
• Citation: 161 S.W. 1027,110 Ark. 379
• Parties: WESTERN UNION TELEGRAPH COMPANY v. ALFORD
• Court: Arkansas Supreme Court

161 S.W. 1027

110 Ark. 379

WESTERN UNION TELEGRAPH COMPANY v. ALFORD

Supreme Court of Arkansas

December 8, 1913

Appeal from Howard Circuit Court; Jeff T. Cowling, Judge; affirmed.

Affirmed.

Geo. H Fearons, Rose, Hemingway, Cantrell & Loughborough, and W. C Rodgers, for appellant.

1. An instruction requiring the appellant to have turned over the message to the Memphis, Dallas & Gulf Railway Company instead of calling up the telephone exchange for transmission of the message to the addressee, was harsh and unreasonable.

A telegraph company may make rules and regulations for the handling of messages. 96 Ark. 213-217; 91 Ark. 602-604; 18 Md. 341-358; 46 W.Va. 48; 8 Tex. Civ. Apr. 176. Their reasonableness is a question for the court. 73 Ark. 205-209; 77 Ark. 531-534; 89 Ark. 483-486.

All parties to a message are held to have consented to all reasonable rules and regulations adopted by the company. 46 W.Va. 48; 15 Mich. 525-535.

There is no proof that the operator at Mineral Springs would have found the addressee. His testimony that he would have made inquiries, etc., amounts to nothing more than mere negative or conjectural evidence. 29 Ark. 448; 86 Ark. 306; 88 Ark 231; Id. 510; 77 Ark. 274; 12 Ark. 782; 43 Ark. 99.

2. The court should have given the peremptory instruction requested by the appellant. Under the stipulation in the contract the company became the agent of the sender for the transmission of the message beyond its own lines, without liability on the appellant. Its act in turning the message over to the telephone company was the act of the sender, and appellant was not, as instructed by the court, bound in law to forward the message over some telegraph company's line. The stipulations of the contract bind both the sender and the addressee. 80 Ark. 554; 130 Cal. 657; 57 Kan. 230; 79 Tex. 65; 64 F. 459.

3. There could not properly be a recovery in this case exceeding $ 50. The contract provides that the company will not be liable in any case for delays except upon payment of an additional sum amounting to one-half the regular charge. The sender may elect to send at his own risk upon the basis of the lower charge, for he is not required by law to pay the higher rate in order to insure against delays. 57 Ark. 112; 33 S.Ct. 391; Id. 397; 226 U.S. 491.

W. P. Feazel, for appellee.

Both means of communication were open to the sender, and he had the right of selection. When he offered the message to the appellant, paid the charges for its transmission and same was accepted by appellant, he thereby elected to send it, and the transaction constituted a contract to transmit, by telegraph.

MCCULLOCH, C. J. SMITH, J., dissents.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages for mental anguish growing out of the alleged negligence of appellant in failing to deliver a telegram. The complaint alleged that appellant was a foreign corporation and operated a line of telegraph from Vivian, Louisiana, to Ashdown, Arkansas, and at the latter place connected with a line of telegraph owned by the Memphis, Dallas & Gulf Railway Company from Ashdown to Mineral Springs, Arkansas; that at 7 A. M., September 30, 1912, appellee's brother, T. C. Clark, delivered to the appellant at Vivian, Louisiana, a telegram addressed to appellee at Mineral Springs, Arkansas, as follows:

"Come at once. Arness is very low. T. C. Clark."

That the toll for the message was paid, but appellant wholly failed and neglected to transmit and deliver it; that Arness was a brother of appellee and was at the time very low, and that he died the day following the filing of the message and was buried the next day thereafter. Damages were asked for the mental pain suffered in the sum of $ 1,500.

In its answer the appellant denied that its line connected with a line of telegraph owned and operated by the railway company from Ashdown to Mineral Springs, and denied that it ever entered into any contract with appellee, or any one for her, to transmit and deliver the message in controversy, but only agreed to transmit it as far as its lines went toward its destination; denied that it had been guilty of any negligence in its transmission, and denied the damages. The answer alleged that by the contract with the appellee it was made the agent of the sender, without liability, to forward the message over the line of any other company that might be necessary.

The proof on the part of appellee was to the following effect: That if the message had been delivered promptly she could, and would have gone to her brother, and, had the message been received at any time before the funeral, that the funeral would have been delayed until after her arrival; but that the message had never been received and she was not advised of her brother's illness and death until after his funeral; that there was a telegraph line maintained along the Memphis, Dallas & Gulf Railroad from Ashdown to Mineral Springs which received and transmitted messages for the public and that the telegraph operator at Ashdown was the joint operator of the railway company and the appellant and that these companies had a common office.

It was admitted that appellant did not operate its lines into Mineral Springs, and the proof offered by it was to the following effect: That the message was routed through Ashdown to Hope as required by the route book and that the operator received the message there without delay but never transmitted it further by telegraph and mailed it in one of the Western Union envelopes the following morning. The operator at Hope testified that immediately after the message was received a telephone call was put in for the telephone operator at Mineral Springs and the information communicated that there was a death message for appellee, the addressee. The operator at Hope testified that inquiry was made several times of the telephone operator at Mineral Springs, and that the message was mailed the next day, no information having been obtained about addressee, and notified the sending office that the message could not be delivered, but the sender was never apprised of that fact.

The telephone operator at Mineral Springs testified that she received the call on September 30 and that she inquired of several business men in town and also of the postmaster but received no information as to Mrs. Alford's address.

The blank on which the message was written contained the following, among other, stipulations:

"The company is hereby made the agent of the sender, without liability, to forward this message over the lines of any other company when necessary to reach its destination."

In rebuttal, appellee offered the evidence of the telegraph operator at Mineral Springs, who testified what his custom was, in the discharge of his duty, upon the receipt of a telegram where the addressee was unknown to him. And this evidence was of such a character as to make it a question for the jury whether the message would have been delivered had it reached the telegraph operator at Mineral Springs in the due course of transmission and the operator had thereafter discharged his duty in making inquiry for the appellee.

Appellee did not live in Mineral Springs but lived in the country six miles from there, and the message, if sent to her over the telephone from Mineral Springs, or if she had been called over the telephone, could have reached her only through the telephone of a Doctor Holcombe, who was appellee's neighbor, as appellee had no telephone in her home, but Doctor Holcombe testified that it was his custom to call any neighbor when wanted over the telephone.

Further in rebuttal, one H. O. Campbell was permitted, over appellant's objection, to testify that during the latter part of September and the first part of October, Mineral Springs was a good cotton market and that much cotton was received there during that time.

The court also admitted the testimony of Claude Johnson, a rural mail carrier, and Mr. Crump Stewart, a farmer, both of whom lived in Mineral Springs, to the effect that they knew appellee and could have given her address if inquiry had been made of them.

The jury returned a verdict in favor of appellee, assessing damages in the sum of $ 350, judgment was entered accordingly, and an appeal has been duly prosecuted to this court.

The primary and controlling question in this case is whether appellant telegraph company had the right to change the nature of the message from a...