Western Union Telegraph Co. v. Griffin

• Decision Date: 08 November 1909
• Citation: 122 S.W. 489,92 Ark. 219
• Parties: WESTERN UNION TELEGRAPH COMPANY v. GRIFFIN. SAME v. GORDON
• Court: Arkansas Supreme Court

122 S.W. 489

92 Ark. 219

WESTERN UNION TELEGRAPH COMPANY v. GRIFFIN.

SAME v. GORDON

Supreme Court of Arkansas

November 8, 1909

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

Judgment affirmed.

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

1. Appellant is not chargeable with negligence. The message was not received at Water Valley until seven minutes after four in the afternoon. Sunday office hours were from eight to ten A. M. and from four to six P. M. The operator's testimony that she used diligence to find a special messenger is uncontradicted and stands as proved. 75 Ark. 406.

2. The proof shows that after the message was mailed, which was the next quickest means of delivering it, Gordon would not have received it until Tuesday morning. Deceased was buried Monday afternoon. If there was any error or delay in the message, it was not the proximate cause of the failure to attend the funeral, and there can be no recovery. 27 Am. & Eng. Enc. of L., 1075-6. The remains had been embalmed, and could have been held for two weeks. Griffin had endeavored to communicate with Gordon by other means. He learned on the next morning that a friend had sent word to Gordon at Banner but proceeded to have the funeral that afternoon, Monday. He should have postponed the funeral a reasonable time after learning of his friend's effort. Having made no effort to minimize the damage, he should not be heard to complain. 90 Ark. 203; Sedgwick on Dam., §§ 204, 214; 27 Am. & Eng. Enc. of L. 1033e; 84 Ark. 506.

3. Appellant was not notified that the funeral arrangements were in abeyance until word should be received from Gordon. 78 Ark. 545; 79 Ark. 33; Sedgwick on Dam., §§ 879 880; 84 Ark. 461; 27 S.W. 144; Id. 52; 26 S.W. 490.

4. If there was any negligence, it occurred in the State of Mississippi, where the mental anguish statute does not apply. 68 Miss. 748; 47 So. 552. The action of an addressee for failure to deliver a telegram is in tort, not in contract. 77 Ark. 536; Thompson on Electricity, § 427; 79 Ark. 452; 84 Ark. 327; 85 Ark. 268. The negligence of the operator at Water Valley, if any, constituted a tort, and Mississippi law applies. In South Carolina, from whose statute ours is taken verbatim, it is held that the law of the place of the negligence governs. 60 S.E. 435; 52 S.E. 107. See also 66 Ark. 466.

5. Griffin cannot recover for mental anguish because his father-in-law was not present at the funeral to console him. It is too remote and speculative. 83 Ark. 476; 79 Tex. 649; 24 Tex.Civ.App. 84; 57 S.E. 757; 60 S.E. 660; Id. 662; Id. 663; 54 S.W. 829; Id. 830; 31 So. 78; 30 S.W. 896; Id. 298; 39 S.W. 198.

R. W. Robins, for appellees.

1. Due diligence is not shown. The message on its face gave notice of its urgency, not to mention the fact that the agent at Conway was given full notice of the necessity for prompt delivery and had agreed to have it delivered by special messenger. Water Valley is shown to be a city of from 3,500 to 4,000 inhabitants. There is no claim that there was no livery stable or other establishment in the city from which a messenger could be sent, nor that any attempt was made to hire such a messenger. And the message was mailed within an hour of the time it was received by the operator.

2. This haste in placing the message in the mail for delivery without making sufficient effort to forward it by special messenger was negligence, and was the proximate cause of Gordon's failure to receive the message in time to attend the funeral.

3. The message was sufficient on its face, aside from information given to the operator, to put the appellant on notice that the funeral arrangements would await an answer from Gordon. Damages are recoverable under such circumstances, even though a reply message is necessary to procure a postponement of the funeral. 78 S.W. 491; 54 S.W. 414; Joyce on Electric Law, § 811; 87 Ark. 303, 307; 88 Ark. 499, 504.

4. Appellant's answer does not plead the Mississippi law as a defense, so as to put appellees on notice and give them an opportunity to show where the negligence occurred. The plea is not now available, in the absence of an amendment of its pleadings. But if the plea were properly before this court, appellants are under the law entitled to recover. 77 Ark. 531, 535. It was not the intention of our Legislature to confine the right of recovery to negligent acts of the telegraph company in this or some other State where the mental anguish doctrine prevails; nor has our court ever so construed the statute. See Arkansas cases cited by appellant. 69 S.W. 427; 74 S.W. 752; 49 S.E. 952; 45 S.E. 938; 135 Mo. 661; 56 L. R. A. 486; Thompson, Law of Electricity, § 165, p. 190; 95 Ind. 12; Jones, Tel. & Tel. Companies, § 598.

5. The true doctrine is that where consanguinity does not exist between the parties mental anguish because of the absence of one of them will not be presumed; "but if mental anguish does actually result from the failure to deliver a message, where there is only affinity between the parties, it may be shown and damages recovered." 132 N. C., 317, 322; 85 Ark. 263; 83 Ark. 39; 87 Ark. 303.

BATTLE, J. FRAUENTHAL, J., disqualified and not participating.

OPINION

BATTLE, J.

On Sunday, March 24, 1907, Mrs. Genie Griffin, wife of Ben L. Griffin, died, and the following telegram was delivered to the Western Union Telegraph Company at Conway, Arkansas, on that day, about one o'clock, P. M. to be sent to A. A. Gordon, at Banner, Mississippi: "A. A. Gordon, Banner, Miss., via Water Valley, Miss. "Genie died very suddenly at one P. M. today. Come at once. Answer, my expense. "Ben L. Griffin."

The funeral of Mrs. Griffin took place at Conway, on the 25th of March, 1907, at about five o'clock P. M. A. A. Gordon was not present, the telegram not having been delivered to him until three or four days thereafter.

Ben L. Griffin and A. A Gordon brought separate actions against the Telegraph Company to recover the damages occasioned by the failure to deliver the message in time.

Ben L. Griffin alleged in his complaint, substantially, as follows: "The defendant is a corporation, engaged in transmitting telegrams, and on March 24, at one o'clock P. M. plaintiff delivered to it the following telegram: 'A. A. Gordon, Banner, Miss., via Water Valley, Miss.: Genie died very suddenly at one P. M. today. Come at once. Answer, my expense. Ben L. Griffin.'

"That at the time the message was delivered to defendant it was notified that A. A. Gordon was the father of 'Genie,' and that plaintiff was very anxious for prompt delivery of the message, so that the addressee could come at once, and be present at the funeral, which was to occur at Conway. That the addressee was then at Banner, and plaintiff desired him to be present at the funeral. That the price for transmitting the message was paid and charges for its prompt delivery guarantied. That defendant agreed to transmit the message and deliver it promptly to the addressee; that defendant wantonly, wilfully and negligently failed to deliver the message promptly, or within a reasonable time, and that the message was not delivered until March 29; that, on account of the failure to deliver the message, the addressee did not attend the funeral and was not with the plaintiff before and at the time of the funeral," which was the occasion to him of great mental anguish, and caused him to suffer damages in the sum of $ 1,500.

The defendant answered and denied the material allegations in the complaint.

A. A. Gordon alleged in his complaint, substantially, that the telegram was sent in the manner alleged in Griffin's complaint, "and that it was not delivered to plaintiff within a reasonable time, because of the negligence of the defendant, and that it was not received by plaintiff until March 29; that, had he received the message promptly or within a reasonable time he could and would have gone to Conway and have been present at the funeral, and that solely because of the failure to deliver the message promptly he was not present at the funeral; that his failure to attend the funeral occasioned him mental anguish and damaged him in the sum of $ 1,500."

The defendant denied material allegations.

By consent the two actions were heard as one, and the jury returned a verdict in favor of each of the plaintiffs for $ 200, and judgment was rendered accordingly; and the defendant appealed.

In the trial of the issues in the case evidence was adduced tending to prove the following facts:

On the 24th of March, about twelve o'clock, Mrs. Genie Griffin died at her home in Conway, Arkansas. She was the wife of Ben L. Griffin and the daughter of A. A. Gordon. About one o'clock P. M. of the same day, Griffin delivered to the defendant, at Conway, a telegram in words and figures set out above, to be sent to A. A. Gordon, at Banner, Mississippi. J. R. Pearcy delivered the telegram for him, and told the defendant's operator, at the time he delivered it, that "Genie" mentioned in the message was the wife of Griffin and the daughter of Gordon; explained to the operator about the funeral, and told him that a reply to the message was desired at once, so that Griffin might know whether or not to expect Gordon to come to the funeral, and told him where Gordon resided, which was about eighteen miles from the defendant's telegraph office at Water Valley, Miss., and that it would be necessary to send the telegram to him from Water Valley by special messenger and offered and agreed to pay all charges for sending the message and extra charges for sending it from Water Valley to Gordon, and defendant agreed to transmit the message and send it to Gordon by special messenger.

The body of Mrs....