Western Union Telegraph Co. v. Webb

• Decision Date: 13 February 1911
• Citation: Western Union Telegraph Co. v. Webb, 135 S.W. 366, 98 Ark. 87 (Ark. 1911)
• Parties: WESTERN UNION TELEGRAPH COMPANY v. WEBB
• Court: Arkansas Supreme Court

135 S.W. 366

98 Ark. 87

WESTERN UNION TELEGRAPH COMPANY v. WEBB

Supreme Court of Arkansas

February 13, 1911

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

George H. Fearons, Trimble, Robinson & Trimble and Rose, Hemingway Cantrell & Loughborough, for appellant.

1. Since the addressees were not at Pioneer, the appellant could not have delivered the message to them there, and it owed appellee no duty to search for them at Floyd or other places. 95 Tex. 420, 67 S.W. 768; 22 S.W. 532; 67 Kan. 729; 107 Ky 663; 81 Mo.App. 223.

2. Addressing the telegram to his brothers at Pioneer without making arrangements for sending the message from that place to Floyd, or notifying appellant of their home address, was such negligence as, to say the least of it, contributed to appellee's alleged damage. 81 F. 676; 60 S.W. 687; 103 Ind. 294.

3. The delay in delivering the message was not the proximate cause of appellee's failure to attend the funeral, but rather either the lateness of the train or his brother's want of care in proceeding with the funeral, under the expectation that appellee would be on the first train, and neglecting to inquire whether the train was on time or late.

4. The argument of counsel for appellee to the effect that appellant had "manufactured evidence which it has introduced here" which, upon appellant's objection, was excluded from consideration by the jury, was followed by counsel's statement, "I made that statement; yes sir, and I stand upon the statement," and was not withdrawn by the court from the jury, nor the counsel reprimanded, was prejudicial and reversible error. 75 Ark. 577; 70 Ark. 305; 71 Ark. 427; 76 Ark. 366.

George M. Chapline, Palmer Danaher, and Vaughan & Akers, for appellee.

1. The instructions of the court submitted to the jury two inconsistent theories, the one, on the part of appellant, that the delivery by Powers to B. K. Webb was a discharge of appellant's duty to exercise reasonable diligence to deliver the message to the addressee, and the other, on the part of appellee, that the telegram did not reach Pioneer at all during the forenoon of December 5, but was negligently delayed until at least 12:15 P. M. The verdict of the jury settles the case in favor of the latter theory. See statement of facts on first appeal. 94 Ark. 350.

2. Had the message been promptly delivered, it is undisputed that the funeral would have been postponed to await appellee's arrival. Appellant's contention that the failure to deliver was not the proximate cause of plaintiff's being deprived of this privilege is fully refuted by this court's opinion in the Griffin case, 92 Ark. 219, where the facts are almost identical with those of this case.

3. A general objection to an instruction which is so worded as to be susceptible of misconstruction by the jury is of no avail. It must be met by specific objection pointing out its defects. 65 Ark. 255; 66 Ark. 264; Id. 46; 76 Ark. 468; 78 Ark. 71; 78 Ark. 156; 82 Ark. 391; Id. 555; 84 Ark. 81; 87 Ark. 396; 89 Ark. 537; Id. 577; 90 Ark. 231; 93 Ark. 595; Id. 215.

4. As to whether or not this court will reverse on account of improper argument necessarily depends "upon the nature of the argument, the circumstances under which it was made, the action of the trial court, and the probable effect of the argument upon the verdict." The argument of appellee's counsel was not prejudicial. 71 Ark. 434-5; 132 S.W. 648; 65 Ark. 475; 76 Ark. 39; Id. 286; 74 Ark. 356; Id. 298; Id. 489; Id. 604; 72 Ark. 614; 58 Ark. 473-493; 75 Ark. 67; Id. 246; Id. 347; 91 Ark. 576.

HART, J. KIRBY, J., dissents.

OPINION

HART, J.

The opinion in a former appeal of this case is reported in 94 Ark. 350 (Western Union Tel. Co. v. Webb). After the mandate of this court was filed in the circuit court, the complaint was amended, and the case was again tried before a jury, which returned a verdict for $ 625 in favor of the plaintiff Sydney B. Webb. The defendant, Western Union Telegraph Company, by this appeal seeks to reverse the judgment rendered upon the verdict.

Reference is made to the opinion in the former appeal for a statement of the case. Additional facts will be stated or referred to in this opinion.

It is strongly urged by counsel for appellant that the verdict is not warranted by the evidence. They insist that the company owed no duty to deliver the message outside of its free delivery limits at Pioneer, and that because the addressee of the telegram resided outside of those limits and made no inquiry for the message at Pioneer, the negligence of appellant in transmitting and delivering the message, if established, was not the proximate cause of the injury. It is true that this is the general rule, as announced in King v. Western Union Telegraph Co., 89 Ark. 402, 117 S.W. 521, but a particular state of facts may make an exception to the rule. This is recognized in the case of Arkansas & La. Ry. Co. v. Stroude, 82 Ark. 117, 100 S.W. 760. In that case the court said: "It was a question for the jury, under the evidence, which we have fully set forth in the statement, as to whether or not appellant exercised ordinary care in delivering the message to appellee. The court properly instructed the jury that the fact that appellee lived beyond the limits of the town at the time the message was received by appellant at Nashville could not avail appellant as a defense, provided appellant by the exercise of ordinary diligence could have delivered the message to the sendee within its delivery limits, i. e., the corporate limits of the town of Nashville."

The operator at Pioneer testified that he delivered the message in question to B. K. Webb, a cousin of Sidney B. and Jesse Webb, about the middle of the forenoon of December 5, 1908; but the jury might have found against appellant on this issue; for it was shown by the testimony of appellee that at about 12 o'clock noon of that day the message was at the relay station of Eudora, and had not yet been transmitted to Pioneer. The operator at Pioneer admitted that he received the message from Eudora, a relay station. Then at the funeral in the afternoon B. K. Webb was present, and there was general comment among those present about the nonarrival of appellee, and B. K. Webb said nothing about having received the message in question. Appellee met his brother coming from the funeral, and after they all reached Floyd, just after dark, the message was delivered to them by one Redmond. From these facts and circumstances the jury might have found that the operator was mistaken when he said he delivered the message to B. K. Webb, about the middle of that forenoon. Now, it will be noted that rules prescribing limits for the delivery of telegrams free of extra charge are made by the telegraph company, and are made for its benefit. If it sees fit, it may waive this rule, or abrogate or change it in whole or in part. Powers, the operator of the company at Pioneer, said that it was a small place of about 500 inhabitants. Floyd was about five miles distant, and had no telegraph station. The testimony of appellee showed that Floyd was only three or four miles from Pioneer; and was off the railroad. We quote from Powers's testimony, as brought out by appellant, as follows: "Q. Under the rules and regulations of that office were you required to deliver messages to any one living in Floyd when they were sent to Pioneer? A. No, sir. Q. What was the custom with regard to that? A. It was the custom to hand them over to residents of Floyd that I usually saw or else to deliver them to Ross Brothers' store, at which point most of the residents of Floyd called when they were in Pioneer. Q. This was the request of the people of Floyd? A. Yes, sir."

Appellee says Powers was slightly acquainted with him. Jesse Webb testified that he had lived at Floyd all his life, and was well acquainted with Powers. He further stated that he was well known by both the old residents of Pioneer and Floyd. As above stated, appellee stated that the message was...