Western Union Telegraph Company v. Webb

• Decision Date: 28 March 1910
• Citation: 126 S.W. 1072,94 Ark. 350
• Parties: WESTERN UNION TELEGRAPH COMPANY v. WEBB
• Court: Arkansas Supreme Court

126 S.W. 1072

94 Ark. 350

WESTERN UNION TELEGRAPH COMPANY v. WEBB

Supreme Court of Arkansas

March 28, 1910

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; reversed.

STATEMENT BY THE COURT.

The Western Union Telegraph Company has appealed from a judgment rendered against it in the Lonoke Circuit Court in favor of Sidney B. Webb for damages for mental anguish, suffered by him on account of the alleged negligence of appellant in transmitting a telegram sent by him concerning the burial of his mother. The complaint charges negligence on the part of appellant at Eudora, Arkansas, a relay station of appellant's line, and no allegation of negligence elsewhere is made in the complaint.

The facts, briefly stated, are as follows: The appellee, Sidney B. Webb, lived at England, Lonoke County, Arkansas. His mother was ill at a sanatorium at Shreveport, Louisiana. She died on the morning of the 4th day of December, 1908, and one of his brothers immediately telegraphed him, announcing her death, and notifying him that he would take her body for burial to Pioneer, Louisiana, their old home.

Appellee was in Jefferson County when he received the message, and at once started for Pioneer. When he reached Pine Bluff Arkansas, he delivered to appellant for transmission about 10 o'clock P. M. the following message:

"Pine Bluff, Ark., Dec. 4, 1908.

"To Jesse and Joe Webb,

"Pioneer La.

"I will arrive tomorrow, but use your judgment as to burial.

"Sidney."

He informed the agent that his mother was dead. That he was on his way to the place where she was to be buried, and that the message related to her burial. Appellee knew that his brothers did not live at Pioneer, but he knew they would go there with his mother's remains, and expected the message to be delivered to them or to their friends. Appellee at once proceeded on his journey, and on the same night reached McGehee, Arkansas, where he had to lay over until the next morning. On the morning of the 5th inst. he went to Eudora Arkansas, where he again had to change trains. While there he went into the telephone office about 12 o'clock M. for the purpose of sending a message to Pioneer, and while there he heard the agent of appellant, whose office was in the same room and who heard him trying to telephone to Pioneer about the burial of his mother, say to a fellow employee "Here is that message that has been here for several hours. Haven't you got that message down there yet? " Appellee saw the message referred to, and said it was the one he had delivered to appellant for transmission. Appellee arrived at Pioneer about 4 o'clock P. M., and at once proceeded to the burial ground, which was two or three miles distant, but on the way met his brothers returning from there.

Jesse Webb, for appellee, testified that they did not receive his brother's message until after they had returned from the burial, and that, had they received it in time, he would have awaited appellee's arrival before interring the body. He said the message was delivered to him by W. B. Redmond, a friend, about dark after he returned from the funeral.

The operator of appellant at Pioneer testified that it was a small place of five hundred inhabitants, and he usually kept office hours from 6 A. M. to 7 o'clock P. M., and that he delivered the telegram in question to B. K. Webb, a cousin of appellee, and his brothers between 9 and 10 o'clock on the morning of the 5th day of December, 1908.

Jesse Webb, for appellee, testified that B. K. Webb was at the funeral, and said nothing about having received the message.

Judgment reversed and cause remanded.

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

Pleadings are considered amended to conform to the proof only when no objection is made to the proof. 71 Ark. 197; 67 Ark. 142. Plaintiff must show that the addressee was at the destination of the telegram. 93 Ark. 415; 7 So. 419; 41 So. 405; 65 A.D. 149; 84 N.Y.S. 54; 32 S.W. 207.

George M. Chapline, F. T. Vaughan and Palmer Danaher, for appellee.

The undertaking of the telegraph company was to deliver the message to the addressee. 87 Mo.App. 533; 84 Ind. 176; 54 Mo.App. 391. A motion for a new trial on the ground of surprise is addressed to the sound discretion of the trial judge, and that will not be controlled by the appellate court unless clearly wrong. 34 Ark. 663; 18 Ark. 574; 20 Ark. 62; Hill on New Trials 379. It is not necessary to show that the addressee was at the destination of the telegram. 53 Ark. 434; 41 Ark. 79. Plaintiff is entitled to damages for mental suffering. 77 Ark. 531; 84 Ark. 457; 87 Ark. 303; 82 Ark. 526; 78 Ark. 545. A general objection to an instruction is not sufficient. 65 Ark. 54; 89 Ark. 24; Id. 537; 88 Ark. 181; 87 Ark. 396; 84 Ark. 81; 65 Ark. 255; 82 Ark. 555; Id. 387; 75 Ark. 325.

OPINION

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

The first and principal ground of reversal urged by counsel for appellant is that the court erred in admitting the testimony of Jesse Webb to the effect that the telegram in question was delivered to him by W. B. Redmond about dark after he had returned from the burial of his mother, and that this was the first time he had seen it. We are of the opinion that the court erred in admitting this testimony. The complaint specifically alleged that the negligence occurred at Eudora and no charge of negligence elsewhere was made. The appellant joined issue on this alleged act of negligence, and prepared to meet it. In the midst of the trial the testimony referred to was offered. It tended to show negligence on the part of appellant at Pioneer, which was not in issue by the pleadings. Counsel for appellant objected to its introduction on this ground, and claimed that they were taken by surprise, and were not prepared to meet it. They asked that, if the pleadings should be considered amended so as to put it in issue as a new or additional ground of negligence, they be granted a continuance. The court, after some argument on the part of counsel on both sides in regard to the matter, granted leave to...