Western Union Telegraph Co. v. Wilson
Decision Date | 02 January 1911 |
Citation | 133 S.W. 845,97 Ark. 198 |
Parties | WESTERN UNION TELEGRAPH COMPANY v. WILSON |
Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court; George W. Hays, Judge; affirmed.
STATEMENT BY THE COURT.
Saturday December 5, 1908, at about 5:20 P. M., R. L. Hopkins delivered to the agent of appellant at Longview, Texas, for transmission the following message:
"Henry" was the brother of the sender of the message, and appellee was their mother. The message was received by the agent of appellant at Camden Saturday, December 5, 1908, at 5:52 P. M. The message was given to the messenger boy at 5:55 P. M. that day. He did not know Hufstedler, or where he lived, looked in the only directory in town, went to the postoffice, found it closed, and inquired of the only man he found there. He asked Mr. Terrel and Mr. Earl, at Terrell & Goodgame's, asked at Stearn's meat market, at Gee's grocery store and McDonald's saloon; made inquiries at most of the stores on the street from 6 until 7:30 P. M. He went to nearly all the business houses in the city. He went to the Hotel Ouachita, the Brooks Hotel and the Riverside Hotel. These were about all the places he could remember. He did not inquire of any of the preachers, teachers or policemen. Terrell & Goodgame's and McDonald's saloons are about a quarter, or a little over, of a block from the telegraph office. Gee's grocery store is about the same distance from appellee's office. He did not inquire at Proctor's or McDonald's furniture store, nor at Reeve's grocery store. He did not go to Rumph & Tyson's and Carson's stores, nor to the Newton Hotel. These were further down. He did not remember whether he inquired at Lide & Brother's or Stark's grocery store, Jackson's, Proctor's, McRae's. Near the Iron Mountain depot McRae had a warehouse, and Wood had a grocery store. He did not go over there to inquire, nor did he ask either of the depot agents that night. Those he mentioned were the only ones he could remember that he made inquiry of as to where he might find the sendee of the message. The messenger boy was 14 years of age; he had lived in Camden all his life, and had been in the service as messenger boy four months. The messenger boy made inquiry for about an hour after he received the message, and then returned to the telegraph office, went out the next morning to the hotels and made inquiry of several people that day but could not tell who they were. The agent receiving the message testified that when he returned from supper to the office the messenger reported that he was unable to find the party; then the agent inquired around town himself. He asked the clerk at the postoffice, the clerk at Terrell & Goodgame's saloon and several others he did not remember made several inquiries, but could not find out anything about Hufstedler. The agent went out to make inquiry himself because the boy reported at 7 o'clock that he was unable to find Hufstedler, and the message was important. The agent was well acquainted in Camden, but did not know Hufstedler had never heard of him and could not find anybody that afternoon or night that knew him.
An employee of the Southwestern Telephone Company testified that he had a call for Sylvester Hufstedler on Sunday, December 6, and that he tried to find him, but was unable to do so, and had to call up Longview, Texas, to find out his specific address. He stated that the telephone operator asked some people around town, but could not locate Hufstedler from them. Hufstedler's name was not in the telephone directory, nor was it in any directory.
Hufstedler lived about seven or eight blocks from the telegraph office and about three and a half blocks from the Iron Mountain depot. He had a family, and was keeping house. He lived in South Camden, and there were several residences on the same street he lived on. It was as thickly settled as the north or east part of town. He had resided in Camden at that time about four months. He was section foreman of the Iron Mountain Railway Company, and a large part of the section where he worked was within the limits of the town. His work required him to be away from home in the day, but he was usually home at nights and on Sundays. Hufstedler had two children, aged respectively 9 and 14 years, in the high school. The larger part of his groceries he purchased from the store of Reeves & Son, located in the city of Camden, diagonally across the street from the telegraph office, not further than 200 yards. In this store five men were employed, each of whom knew Hufstedler, and where he lived, and the proprietors of the store were the kinsmen of the telegraph messenger boy.
Hufstedler testified as follows:
A policeman testified that he knew Hufstedler; that the witness generally went home about 10 o'clock at night; that his business was on the streets going from one place to another, sometimes in the residence portion of the town. He knew the vicinity in which Hufstedler resided, and could have directed anybody to his home. Neighbors living close to Hufstedler testified to knowing him, and one of them said he was down town Saturday night, December 5, and if any one had asked him about Hufstedler he could have told where he lived. Camden was a city at that time of about 5,000 inhabitants. The message was delivered at the residence of Hufstedler Monday morning.
R. L. Hopkins, the sender of the message, would have brought the body of his brother to Malvern for burial had he received a reply to his message, and appellee would have attended the funeral of her son at Malvern if he had been buried there.
The appellee brought this suit, alleging that appellant was negligent in failing to deliver the telegram, and that R. L. Hopkins, failing to receive a reply to his message, had the body of the plaintiff's son, Henry, buried at Longview, Texas, on the 6th of December, 1908, without the knowledge of the plaintiff and contrary to her wishes. That if the message had been delivered to the addressee immediate directions would have been telegraphed to bring the body of her son to Malvern, Arkansas, for interment, and that she would have attended the funeral. That, because of the negligence of appellant company in the failure to transmit and deliver the message, she was deprived of the privilege and opportunity of viewing the remains of her son and attending his funeral.
The appellant answered, and denied all the material allegations. The court, at the request of appellee, granted the following prayers:
General objections were made to the giving of these prayers, which the court overruled, and to the ruling appellant duly excepted.
The appellant prayed for instructions telling the jury that if R L. Hopkins was guilty...
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