Western Union Telegraph Co. v. Hearn

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Western Union Telegraph Co. v. Hearn, 161 S.W. 1025, 110 Ark. 176 (Ark. 1913)
• Decision Date: 17 November 1913
• Parties: WESTERN UNION TELEGRAPH COMPANY v. HEARN

161 S.W. 1025

110 Ark. 176

WESTERN UNION TELEGRAPH COMPANY v. HEARN

Supreme Court of Arkansas

November 17, 1913

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

Judgment affirmed.

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

1. The message which is the foundation of the action, contains the stipulation that the company will not be liable for damages or statutory penalties where the claim is not presented within sixty days after the filing of the message for transmission. This stipulation is a reasonable one, and is a condition precedent to appellant's right of recovery; yet performance of the condition by appellant was not pleaded nor proved. 54 Ark. 221-223; 80 Ark. 554-558; 94 Ark. 336-338; 109 N.C. 527; 79 Tex. 65; 4 Enc. Pl. & Pr. 633-662; 84 Tex 313.

2. The facts show that there was no negligence whatever in the transmission or delivery of the message, unless appellant's inability to get its wire up on Sunday can be construed as negligence. The lineman had the right to follow the dictates of his own conscience, and refuse to do the work on Sunday; and, while a corporation may request its servants to do work on Sunday which, in the province of the law would be proper, yet the statute law can not rest in any person or corporation the right to compel a citizen to work on Sunday against his will. Art. 2, § 24, Constitution, 1874; Kirby's Dig., § 2030; 20 Ark. 289-291; 85 Ark 134-136; 56 Ark. 124; 58 Ark. 1; 18 Md. 341-357.

Ordinary risks of delay from accidents to the line are assumed by the sender and addressee. Fed. Cas. No. 4004.

3. The message provided that there could be no greater amount recovered than the toll exacted except upon payment of an additional charge for repeating. The sender elected to send the message at the ordinary twenty-five-cent toll. The election and all the stipulations of the message are binding upon the addressee as well as upon the sender. 80 Ark. 554; 57 Kan. 230; 130 Cal. 657; 64 F. 459; 79 Tex. 65; 46 W.Va. 48; 15 Mich. 525. The limit and value of recovery was fixed in the message at $ 50 even in case of negligence. 226 U.S. 491; 33 S.Ct. 391.

S. S. Langley and A. P. Steel, for appellee.

1. Appellant will not be permitted to raise the issue of the sixty days' limitation in this court for the first time. It is clear from the record that the case was tried on the theory that the notice was given. 95 Ark. 539; 75 Ark. 76; 81 Ark. 561; 82 Ark. 260; 88 Ark. 189; 89 Ark. 308.

2. The evidence is sufficient to establish negligence on the part of the appellant. The transmission of telegraph messages is a necessity, and the labor necessary to transmit a Sunday message is in the same class as the transmission of mail and passengers. The company received the message on Sunday, and the action is for negligence in transmitting and delivering the message, under the statute. 96 S.W.148.

Before appellant can avail itself of the wire troubles as a defense, the burden is on it to show that the wire troubles were not due to its own fault or negligence. 100 Ark. 1.

OPINION

MCCULLOCH, C. J.

The plaintiff, Mrs. Jennie Hearn, instituted this action against the Western Union Telegraph Company to recover damages on account of alleged negligent failure of appellant to deliver a telegram, apprising plaintiff of the death of her father. She alleges and attempts to prove that, if the telegram had been delivered with reasonable promptness, she could, and would, have reached the place where her father died in time to attend the funeral, and that she suffered mental anguish by reason of being deprived of that privilege.

The plaintiff lived at Roseboro, Arkansas, a point on the railroad north of Gurdon, and her father, R. B. Alexander, lived at Whelen, Arkansas, a railroad point south of Gurdon. Her father died at Whelen early in the morning on Sunday, October 6, 1912, and about 10 o'clock that morning, one Stone delivered to defendant's telegraph operator at that place a message directed to plaintiff in the following language:

"Father died about 1 o'clock. Come at once."

The customary toll was paid, and the message was accepted. If the message had been delivered at any time prior to 7 o'clock P. M., Monday, October 7, plaintiff could have gotten a train at Roseboro which would have carried her to Whelen in time to reach there several hours before the funeral occurred; but the telegram was not delivered until shortly after 8 o'clock on October 7, which was too late to get a train or any other mode of conveyance to the scene of the funeral. The body could not be kept over another day, and plaintiff was thus deprived of the privilege of attending her father's funeral.

She recovered damages at the trial in the sum of $ 250, and the amount of the verdict is not challenged as being excessive.

The operator at Whelen transmitted the message to Little Rock, and thence it was sent to Gurdon, reaching there about 2 o'clock P. M. Sunday. It was sent over the railroad wire, because of the fact that the commercial wire was not in use except during the office hours of that day, which were limited to the hours between 8 A. M. and 10 A. M., and from 4 P. M. to 6 P. M. The Gurdon operator attempted to forward the message to Roseboro, but found the wires down, and an effort was made to have the wires repaired, but the linemen on duty at that place, refused to work because it was Sunday. The operator also testified that he tried to telephone the message to Roseboro, but found that the telephone wire to Gurdon was also out of use. The message was sent through early Monday morning soon after the telegraph line was repaired, and, as before stated, was delivered about 8 o'clock, but too late for plaintiff to catch the morning train.

There is evidence to the effect that the telegraph wire between Gurdon and Roseboro went down on the evening or night of October 5.

We are of the opinion that the evidence was sufficient to sustain a finding of negligence which warranted the award of damages and that the court did not err in refusing to give a peremptory instruction. There was an unreasonable delay in transmitting and delivering the message, and the burden was on the defendant to account for the delay so as to free itself of the charge of negligence. Western Union Telegraph Company v. Chilton, 100 Ark. 296, 140 S.W. 26. The message reached Gurdon at 2 o'clock P. M. on Sunday, and appellant had from then until 7 o'clock the next morning to forward and deliver it in time for the train which plaintiff might have caught. The evidence tends to show that the line was down the evening before, and reasonable diligence might have discovered its condition even before the Sunday hours began. There was no attempt to show that the trouble with the wires was discovered at the earliest moment,...