Western Union Telegraph Company v. Love Banks Company

• Decision Date: 03 December 1904
• Citation: 83 S.W. 949,73 Ark. 205
• Parties: WESTERN UNION TELEGRAPH COMPANY v. LOVE BANKS COMPANY
• Court: Arkansas Supreme Court

83 S.W. 949

73 Ark. 205

WESTERN UNION TELEGRAPH COMPANY v. LOVE BANKS COMPANY

Supreme Court of Arkansas

December 3, 1904

Appeal from Woodruff Circuit Court, HANCE N. HUTTON, Judge.

Reversed.

Reversed and remanded.

Geo. H Fearons, Rose, Hemingway & Rose and Roleson & Wood, for appellant.

The court erred in leaving to the jury the question whether the office hours were reasonable. The company had the right to fix its own reasonable office hours. Crosw. Electr. §§ 421, 422; 103 Ind. 505; 54 S.W. 563; Id. 829; 47 A. 881; 62 S.W. 136; 31 S.W. 211; 66 S.W. 17; 66 Id. 592; 25 Id. 760; 43; Id. 1053; 54 S.W. 827; 52 Ark. 406; 55 Ark. 138; 58 Ark. 334; 54 S.W. 963; 92 Am. Dec. 141. The court erred in its instructions to the jury as to measure of damages. 53 P 252; 35 P. 75; 19 S.E. 67; 6 S.E. 813; 8 S. 746; 78 Me. 97; 2 A. 847; 2 W. Cond. (Tex.) § 113; 19 S.E. 366; 21 S.E 212; 32 So. 310; 29 So. 787; 60 N.W. 677; 89 Ala. 587, S.C. 8 So. 132; 83 Ky. 104, S.C. 4 Am. St. 125; 51 N.Y. 668; 1 Tex. Civ. App. 1 S.C. 20 S.W. 725; 87 Wis. 297; S.C. 58 N.W. 391; 54 S.W. 825; 43 N.W. 959; 44 S.E. 309; 61 Ark. 613.

P. R. Andrews, for appellee.

This is a case where the rule that the reasonableness of office hours is a question of law, does not apply. Even if the office hours claimed by appellant were established, it was incumbent upon it to show that notice was brought home to appellee. 25 S.W. 439. The cases in 54 S.W. 964 and 61 S.W. 548 do not apply. The instruction of the court as to measure of damages was correct. 10 L. R. A. 515; 27 S.W. 760; 25 S.W. 871; 43 L. R. A. 214; 31 S.E. 275; 72 P. 499; 15 Tex. Civ. App. 547; 16 Ib. 52, 14 Ib. 565; 33 Ia. 214; 83 Ia. 257; 57 N.W. 696; 90 Ia. 129; 38 S.W. 1068.

MCCULLOCH J. HILL, C. J.

OPINION

MCCULLOCH, J.

The appellee, Love Banks Company, a mercantile corporation, sued appellant for damages resulting from negligent failure to deliver a message, and from a verdict and judgment in favor of plaintiff the defendant appealed.

The complaint alleges and the proof establishes the facts that appellee was operating a mercantile business at the village of Wiville, in Woodruff County, where appellant maintained a telegraph office, and during the afternoon of Saturday, October 13, 1900, having 70 bales of cotton on hand for sale, sent a telegraphic message to Ferrill & Co., at Palestine, Ark., asking for a bid on the cotton, and at the same time sent a similar message to J. L. Smith, a cotton buyer at Augusta, Ark. Smith replied immediately by wire, offering $ 0925 per pound for the cotton, but no answer to the other message was received by appellee during the day. Ferrill & Co. filed with appellant's operator at Palestine at 4:35 p. m. on that day a reply to the message, offering $ .0930 for the cotton, but the message was not delivered to appellee until 1 o'clock the following Monday afternoon. Appellee then wired Ferrill & Co. an acceptance of the offer, and Tuesday morning received reply dated Monday the 15th, "Can give but $ .0880 today," and thereupon the cotton was sold for $ .0850, making a difference of $ 301.32 on the 70 bales between the price offered by Ferrill & Co. and the price received on the sale.

Mr. Banks, the president and manager of appellee, and who conducted the negotiation, testified that the cotton was for sale, that he was seeking the highest offer, and would have sold at the price offered by Ferrill & Co. if the message had been delivered in time, and did in fact make acceptance as soon as it was received.

Kelley, the operator at Wiville, testified that he was also operator at Howell, a small station a few miles distant, and the rules of the company established for the management of the business provided for the Wiville office to be kept open for business from 12 o'clock noon until 4 p. m. daily, except Sunday, and at Howell from 8 o'clock a. m. until 12 o'clock noon, and from 4:30 until 6 p. m.; that the volume of telegraph business passing through the Wiville office did not amount to more than $ 1.50 to $ 2 per month, and did not justify keeping an operator there any greater portion of the time. He also testified that he received this message at 5:20 p. m. on the 13th at the Howell office, but did not deliver it that day for the reason that Mr. Banks did not live within the free delivery distance from Howell. Mr. Banks testified that no regular hours were kept by the operator at Wiville, and that Kelley, the operator, remained at Wiville on the day in question until 6 p. m.

1. The court instructed the jury of its own motion to the effect that "persons who deal with telegraph offices do so with regard to the rules and regulations of their offices relative to the terms and hours of business."

The defendant asked the court to give its instruction number 7, as follows: "7. If the jury find from the testimony that the message was delivered for transmission at Palestine too late to be transmitted so as to reach Wiville during office hours at Wiville, then defendant would not be liable for delay in its transmission, if you further find that it used due diligence to deliver the message when office hours began at Wiville or through some other office." The court refused to give said instruction as asked, but modified the same by adding thereto the words, "provided that the jury find that the office hours at Wiville were reasonable."

In thus submitting to the jury the question whether or not the regulation fixing office hours at Wiville were reasonable, instead of declaring as a matter of law whether the same was reasonable or unreasonable, the court erred. This question is well settled by the decisions of this court. Railway v. Adcox, 52 Ark. 406, 12 S.W. 874; Railway Co. v. Hardy, 55 Ark. 134; Railway Co. v. Hammond, 58 Ark. 324. These decisions seem to be in line with the decided weight of authority. Vedder v. Fellows, 20 N.Y. 126; Ill. Cent. R. Co. v. Whittemore, 43 Ill. 420; W. U. Tel. Co. v. Crider, 107 Ky. 600, 54 S.W. 963; Kansas & A. v. Railway Co. v. Dye, 70 F. 24; Little Rock & M. Railway Co. v. Barry, 84 F. 944; Louisville & N. Railway Co. v. Fleming, 18 Am. & Eng. Ry. Cases 347, Tracy v. New York & Hudson Rd. Co., 9 Bosw. 396; Hoffbauer v. D. & N. W. R. Co., 52 Iowa 342, 3 N.W. 121; Southern Fla. Ry. Co. v. Rhoads, 25 Fla. 40, 5 So. 633.

The reasoning of Judge Sanborn in delivering the opinion of the court in Little Rock & M. Railway Co. v. Barry, supra, discussing this question, is, we think, unanswerable, and he says: "These questions must be determined by the court, because there is no other way in which a set of rules may ever be established or adjudicated as either reasonable or sufficient. It may be said that trial judges often differ upon questions of this character. But the answer to the objection is that the appellate court will finally settle them, and in the end a substantial uniformity of decision as to the reasonableness and sufficiency of any set of rules in general use must eventually result, if these questions are left to the determination of the courts. If, on the other hand, they are remitted to the juries, their various findings can result in little less than confusion worse confounded. The decision of an appellate court becomes a precedent for the rulings of many inferior courts. But the finding of one jury is no precedent for the decision of another, and a rule that is found to be reasonable by one jury will frequently be thought to be unreasonable by another, and no criterion will ever be established by which railroad companies may measure their duties in this regard, if the reasonableness and sufficiency of their rules are to be daily submitted to new tribunals, which are governed by no precedent, and are without experience in the determination of these questions."

It might be urged that most of the authorities herein cited go to the question as to the reasonableness of a system of rules and regulations made by a railroad or like corporation intended for general application in dealing with the public at large, where the necessity for uniformity of construction requires that it should be done by the court, rather than by the jury, in each case, and do not apply to the question of a local rule governing the dealings with a particular office. We do not think, however, that this difference alters the principle in anywise, or that the wisdom of having a construction of such rules by the court, rather than by the jury, is less manifest in the one class of cases than in the other. After all, in either case the question of the reasonableness of a rule, as applied to a given state of facts, is a conclusion of law to be drawn and declared by the court, and not a question of fact to be submitted to a jury for a finding thereon.

Where there is a conflict in the testimony, as appears to have been in the trial of this case below, whether any regulations have been established at all, or what they are if any have been established, are questions of fact to be submitted to the jury upon proper directions by the court declaring the...