Western Union Telegraph Co. v. Shofner

• Decision Date: 13 July 1908
• Citation: 112 S.W. 751,87 Ark. 303
• Parties: WESTERN UNION TELEGRAPH COMPANY v. SHOFNER
• Court: Arkansas Supreme Court

112 S.W. 751

87 Ark. 303

WESTERN UNION TELEGRAPH COMPANY v. SHOFNER

Supreme Court of Arkansas

July 13, 1908

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

Affirmed.

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

1. The action of plaintiff was in tort for the non-delivery of a telegram. There is no allegation of joint negligence in the complaint, and plaintiff seeks to recover against one defendant only, without stating which. There was a misjoinder of parties defendant, and the motion to strike out the name of one defendant should have been sustained. 79 Ark. 453; 77 Ark. 535; 51 Ark. 260; Kirby's Dig. § 6082; Bliss on Code Pl. § 83.

2. There is no proof that plaintiff's damage was caused by any negligence on the part of defendant, nor that she could have reached either Rule or Abilene before her mother was buried, even had the message reached her promptly.

There is only a possibility that Will Rountree would have been able to deliver the message to plaintiff, and damages based on this contingency are too speculative and uncertain to warrant recovery. 54 S.W. 825; 90 Ky. 265; 87 Tex. 38; 45 N.Y. 744; 11 Cal.App. 328; 18 Wash. 260; 96 F. 84; 78 Me. 97; 79 Miss 58; 114 N.C. 440; 100 Cal. 454.

Defendant had no notice that plaintiff would expect to go to Abilene instead of Rule, Texas, as the message indicated, and defendant did not have in contemplation that the message would induce plaintiff to go to Abilene. 53 Ark. 434; 78 Ark. 545; 79 Ark. 37.

W. P. Feazel, for appellee.

1. If there was a misjoinder of parties defendant, appellant has failed to show in what way it was or could have been prejudiced by being joined as a defendant with the railroad company.

2. The question as to what appellee could and would have done if appellant had discharged its duty was fairly submitted to the jury, and their verdict settles the question as to the sufficiency of proof. It is conclusively shown that she could have gone either to Rule or Abilene in time for the funeral, if the message had been promptly delivered, and Rountree's testimony was sufficient to warrant the jury in finding that he would have sent it to her in time to take the train the next morning. On the question of notice whether or not she would expect to go to Rule or to Abilene, the message itself was notice that there would be a funeral somewhere in a short time, and that appellee was interested, would likely attend if it was delivered promptly, and that failure therein would probably deprive her of the opportunity. This is sufficient to fix liability on appellant for damages arising from its negligence. 82 Ark. 526; 78 Ark. 551.

OPINION

MCCULLOCH, J.

This is an action instituted by Mrs. T. W. Shofner to recover damages resulting from alleged negligent failing of the telegraph company to properly transmit a telegram informing the plaintiff of the critical illness and impending death of her mother. Mental anguish is alleged to have been endured by her on account of being denied the privilege of attending her mother's funeral.

The plaintiff resided at Corinth, Arkansas, a village in Howard County, about seven miles from Nashville. Corinth is off the railroad, and has no telegraph or telephone connections; Nashville being the nearest point of communication. Her mother was at Rule, Texas, and her brother, C. W. Bacon, filed with the agent of the Western Union Telegraph Company at Rule on April 27, 1907, the following message and paid the tolls thereon:

"Corinth, Ark. via Nashville, Ark. Care Will Rountree. "Mother can live but a few hours.

[Signed] "C. W. Bacon."

The message was transmitted over the wires of the Western Union Telegraph Company from Rule, Texas, to Hope, Arkansas, thence to Nashville over the wires of the Arkansas & Louisiana Railway Company, the latter company being engaged in operating a telegraph line for public service between the two last named points. Before the message was delivered to the plaintiff or to Will Rountree, the words "Care Will Rountree" were omitted therefrom, and the alleged negligence upon which the action is based consists in this omission.

The testimony, though conflicting, tends to establish the fact that the message contained the words when it was filed with the Western Union for transmission, and the undisputed evidence shows it was not contained in the message delivered by that company to the Arkansas & Louisiana Railway Company. So it may be treated as established by the verdict that the words in question were negligently omitted from the message by the servants of the Western Union.

The action was instituted and progressed to trial against both companies, but after the testimony was all in the court gave a peremptory instruction to the jury to return a verdict in favor of the railway company.

Will Rountree, the person originally named in the message, resided at Nashville, and was closely related by marriage to Bacon the sender of the message. The message reached Nashville at 5:30 P. M. on April 27th, but as it contained no directions concerning delivery and the operator at that place had no information concerning the means of delivering it...