Western Union Telegraph Company v. Garlington

• Decision Date: 08 January 1912
• Parties: WESTERN UNION TELEGRAPH COMPANY v. GARLINGTON
• Court: Arkansas Supreme Court

142 S.W. 854

101 Ark. 487

WESTERN UNION TELEGRAPH COMPANY v. GARLINGTON

Supreme Court of Arkansas

January 8, 1912

Appeal from Poinsett Circuit Court; Frank Smith, Judge; affirmed on remittitur.

STATEMENT BY THE COURT.

The appellee lived at Altoona, Ala., and had a son, Dr. H. S Garlington, who lived at Marked Tree, Ark., and another son Dr. Joe Garlington, who lived at Crawfordsville, Ark. For some time prior to his death Dr. Joe Garlington had been afflicted with consumption, and in December, 1910, realizing that he could not live long, had returned to Altoona, his old home, to spend his last days. He died January 12, 1911, and on that morning the plaintiff dispatched a message to her son, Dr. H. S. Garlington, at Marked Tree, Ark., reading "Joe died this A. M., 3:15; bury tomorrow, 2:30." The telegram was received by the appellant's agent at Marked Tree during the afternoon of January 12, but was not delivered in time for the addressee to take the train that afternoon to Altoona. Had it been delivered promptly, he would have reached Altoona in time to have been present at his brother's funeral.

Appellee testified that it would have been a source of consolation to her if her son could have been with her at the funeral and for a few days thereafter. She suffered greatly because her son was not at the funeral; she fully expected him to be with her, and says that she knew something serious had prevented it.

The appellant delayed five days before delivering the message. Had the addressee, Dr. H. S. Garlington, telegraphed the appellee to postpone the funeral, she would have done so. Appellee did not hear from her son, Dr. H. S. Garlington after the death of her other son until she received a letter from him. The two brothers were intimate and affectionate. Dr. H. S. Garlington would have attended the funeral, had he received the message. The above are substantially the facts upon which appellee based her suit for damages.

The only defenses are: First, that a mother does not suffer mental anguish, under the statute, by being deprived of the consolation of a son at the funeral of another son and his companionship for a few days thereafter. Second, that the appellant did not have notice of special circumstances causing appellee to suffer mental anguish because she was deprived of the consolation of her son's presence.

Judgment affirmed.

Geo. H. Fearons, Mathes & Mardis and Rose, Hemingway, Cantrell & Loughborough, for appellant.

1. Appellee's claim that she was deprived of the consolation of the presence of her son at the funeral and a few days thereafter is not sufficient to support an independent award of damages. Nor is this element, coupled with the element of mental suffering because she knew something serious had prevented the coming of her son to the funeral, sufficient to support an award of damages. 5 H. & N. 536; 83 Ark. 476, 481; 90 Ark. 268; 92 Ark. 59; 82 Ark. 117, 128; 73 S.W. 1043; 58 S.W. 204; 41 S.W. 469; 99 S.W. 704; 100 S.W. 974; 85 S.W 1171; 32 N.E. 871; 98 Ark. 347.

2. The verdict is excessive. 90 Ark. 57.

Appellee, pro se.

1. The mental suffering which resulted to appellee by being deprived of the presence and consolation of her eldest son at the funeral of another son and a few days thereafter is an element of damages clearly in contemplation of the statute. Kirby's Digest, § 7947; 80 Ark. 554; Jones on Tel. & Tel. Companies, 519, § 543; 132 Am. St. Rep. 38; 32 So. 749; 158 Ala. 563; 132 Am. St. Rep. 46.

2. The verdict is not excessive. 82 Ark. 526.

OPINION

WOOD, J., (after stating the facts).

1. In the case of Western Union Telegraph Co. v. Griffin, 92 Ark. 219, 122 S.W. 489, the wife of Griffin was the daughter of A. A. Gordon, who lived at Banner, Miss. Griffin lived at Conway, Arkansas. Griffin's wife died, and he sent to her father (his father-in-law) at Banner, Miss., the following telegram: "Genie died very suddenly at 1 P. M. today. Come at once. Answer, my expense."

The telegram was not delivered. Gordon, for that reason, did not attend the funeral, and Griffin sued the Telegraph Company,i alleging 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 caused him great mental anguish, etc., and in consequence of which he suffered damages in the sum of $ 1,500. The jury awarded Griffin damages in the sum of $ 200, and this court affirmed the judgment. It was contended by appellant in that case that Griffin could not recover for mental anguish because his father-in-law was not present at the funeral to console him; that such damages would be too remote and speculative. The court, in affirming the judgment, necessarily overruled that contention.

The principle upon which such damages are recoverable was not announced in that case, but the attention of the court was specially directed to the contention of appellant that mental anguish because of the failure of a father-in-law to be present at a funeral to give consolation to his son-in-law was not an element of damages under our statute, and the court in that case expressly recognized such damages as an element of recovery. That case rules this.

There is much stronger reason, it seems to us, why the mother would suffer mental anguish on account of being deprived of the consolation that the presence of her eldest son could afford her at the funeral of his brother than in the case of the consolation that a father-in-law might afford his son-in-law by being present at and immediately after the funeral of the latter's wife. For in the former case the relation is by blood, and is the most tender and affectionate that could be conceived, that of mother and child, while in the latter the relationship is only by affinity, and the bond of affection is not so strong.

In the case of Western Union Tel. Co. v. McMullin, 98 Ark. 347, 135 S.W. 909, a mother was away from her daughter; the daughter's child was killed, and a telegram was sent to the grandmother of the child telling her of it, but it failed to reach her in time to attend the funeral of the child. Suit was brought by the grandmother for mental anguish on this account. In submitting that question to the jury, the court also submitted along with it the question as to whether or not it was an element of damages for the mother to be deprived of the opportunity of affording comfort to her daughter in the hour of her grief. The court, in passing upon whether or not this was error, said: "It is impossible to define everything that should be regarded as mental anguish or suffering. Of course, there can be no recovery for imaginary situations or conditions of anxiety caused thereby, but a recovery will be allowed for the mental suffering which the failure to deliver a telegram may reasonably be expected to produce to an ordinary human being, and under all the facts and circumstances of this case the court properly submitted to the jury the question of what mental anguish, if any, resulted to the appellee from the alleged negligence of appellant in not delivering the message."

The court seemed to recognize in the above case that mental anguish may result on account of being deprived of the consolation which the presence of a near...