Western Union Telegraph Company v. Johnson

• Citation: 171 S.W. 859,115 Ark. 564
• Decision Date: 07 December 1914
• Docket Number: 50
• Parties: WESTERN UNION TELEGRAPH COMPANY v. JOHNSON
• Court: Arkansas Supreme Court

171 S.W. 859

115 Ark. 564

WESTERN UNION TELEGRAPH COMPANY v. JOHNSON

No. 50

Supreme Court of Arkansas

December 7, 1914

Appeal from Crittenden Circuit Court; W. J. Driver, Judge; reversed.

Judgment reversed and cause dismissed.

Geo. H Fearons (of New York), Chas. H. Todd and Rose, Hemingway Cantrell & Loughborough, for appellant.

1. This was an interstate message and no recovery can be had. Western Union Tel. Co. v. Compton, ms. op.; 180 U.S. 1; 172 Id. 475.

L. P Berry and S. V. Neely, for appellee.

Western Union Tel. Co. v. Brown, 180 U.S. 1, does not determine this case. 38 L. R. A. 40. See, 100 S.W. 974; 33 Ark. 350; 79 Ark. 448; 82 Id. 96; 93 Id. 415; 37 Cyc. 1664-1669.

In 50 A. L. R. 9, every contention of appellee was sustained.

OPINION

SMITH, J.

On the 23d day of March, 1913, appellee sent, from appellant's office at Earle, Arkansas, to one W. T. Ratcliff, at Blue Mountain, Mississippi, the following telegram:

"Dear homefolks: Our little Pauline died at midnight. We will be home on evening train via Middleton. Have everything prepared."

Mr. Ratcliff was the grandfather of the little child, and failed to make any arrangements for the funeral because the telegram was never delivered. And, as a result of this failure to deliver the telegram, certain circumstances arose causing mental anguish. A charge of eighty cents was made and paid for the transmission of the message, but no recovery of that money was asked.

The evidence in this case is sufficient, at least, to raise the question of negligence on the part of the telegraph company in the failure to deliver the telegram and to have supported a finding that mental anguish, to compensate which this action was brought, was suffered as a result of this failure. In such cases we have heretofore sustained judgments for damages in cases free from prejudicial error; but hereafter such recoveries can not be sustained where the message is an interstate one. This is true because the Supreme Court of the United States is the final arbiter in all matters relating to commerce between the States, and that court has held that such actions can not be maintained.

In the recent case of Western Union Tel. Co. v. Compton, 114 Ark. 193, 169 S.W. 946, we affirmed such a judgment; but while that case was pending before us on a motion for rehearing, the opinion of the Supreme Court of the United States in the case of Western Union Tel. Co. v. Brown, 234 U.S. 542, 58 L.Ed. 1457, 34 S.Ct. 955, was handed down.

Following the opinion in the Brown case, as we were required to do, a rehearing was granted in the Compton case, and in the opinion granting the rehearing, the following language was quoted from the opinion in the Brown case:

"What we have said is enough to dispose of the case. But the act also is objectionable in its aspect of an attempt to regulate commerce among the States. That is, as construed, it...