Western Union Telegraph Company v. Hanley

• Decision Date: 03 February 1908
• Citation: 107 S.W. 1168,85 Ark. 263
• Parties: WESTERN UNION TELEGRAPH COMPANY v. HANLEY
• Court: Arkansas Supreme Court

107 S.W. 1168

85 Ark. 263

WESTERN UNION TELEGRAPH COMPANY v. HANLEY

Supreme Court of Arkansas

February 3, 1908

Appeal from Izard Circuit Court; John W. Meeks, Judge; affirmed.

STATEMENT BY THE COURT.

Plaintiff instituted this action in the circuit court of Izard County to recover damages alleged to have been sustained by her on account of appellant's negligent failure to transmit and deliver a telegram sent by her from Memphis, Tenn., to May-field, Ky. The circumstances under which the telegram was sent were as follows:

Plaintiff resided in Arkansas, but was en route to May-field, Ky., for the purpose of visiting her niece, who resided at that place and whose husband was a member of the firm of Gardner & Green, of that place. She arrived at Memphis, Tenn., about 8 o'clock in the evening of November 14, 1905, and desiring to send a message acquainting her relatives of her arrival, she asked the telegraph operator if he could get through a message to Mayfield by 9 o'clock, and he replied in the affirmative. She explained to him, so she testifies, that, unless he was sure that the message could be got through by 9 o'clock, she would not send it, but would remain in Memphis until the next day, as she knew that the hack accommodations at Mayfield were poor, and she did not want to get there in the night time without some one to meet her. Upon assurances from the operator that the message would be rushed through in time for delivery before the hour named above, she filed the following message with the defendant's operator:

"Gardner & Green, Mayfield, Ky.

"Will arrive on number four tonight.

(Signed)

"Willie Hanley."

The message was not delivered to the addressee until sometime during the next day after plaintiff's arrival at her destination. She reached Mayfield about one o'clock in the night, and no one was there to meet her. The public hack was full, and she could not secure a seat therein, but had to remain at the depot about three-quarters of an hour awaiting the return of the hack. She testifies that it was a very cold night, with sleet and snow on the ground, and that there was very little fire in the railroad station, where she was compelled to wait. She testified that she suffered very much from the cold; that her shoes froze to her feet, having got wet in Memphis; and that, as a result of said exposure, she was sick with fever and cold for two or three days after her arrival at Mayfield. She also testified that she suffered some "uneasiness of mind," as she expressed it, on account of having to wait in the depot at night during the period of the delay in waiting for the return of the hack.

Evidence introduced on behalf or the defendant tended to show that the delay was on account of the fact that, according to the rules of the office at Mayfield, that office was closed before the message could be sent. The operator at Memphis who received the message testified that he informed her at the time she gave him the message that it was doubtful whether it could be transmitted to Mayfield that night. The operator at May-field testified that he was at the office until nine o'clock and just before closing the office he inquired of the Memphis office whether or not they had any message for his office.

The jury returned a verdict in favor of the plaintiff for the sum of $ 200 damages, and the defendant, after its motion for new trial was overruled, appealed to this court.

Judgment affirmed.

George H. Fearons and Rose, Hemingway, Contrell & Loughborough, for appellant.

1. Damages for mental anguish are awarded only in cases of sickness and death, and not for trivial annoyances. 104 S.W 154; 70 Tex. 243; 46 N.E. 358; 54 N.E. 776; 44 So. 382; 90 S.W. 856; 70 S.W. 162.

2. It is well settled that there can be no recovery for physical suffering, such as is claimed here, because that is not in contemplation of the parties. 76 Tex. 619; 73 F. 273; 55 S.E. 318; 46 N.E. 358; 61 S.W. 421; 81 S.W. 580; 7 S.W. 715; 68 S.W. 549.

3. There was nothing in the telegram nor in plaintiff's communication with the operator at Memphis to put the company on notice that damage would result from non-delivery. 79 Ark. 33.

4. Plaintiff was under the duty, when exposed to injury by the negligence of another, to use reasonable diligence to avoid such injury. 80 Ark. 321.

5. It was error to permit appellee over appellant's objectionto read the deposition of the witness Howard, which had been taken by appellant, whereby, in effect, appellant was deprived of the right of cross-examination, 15 Ark. 345.

McCaleb & Reeder, for appellee.

1. Appellant is in error in saying that damages for mental anguish can be allowed against telegraph companies only in cases of sickness and death. This case is not only not a frivolous case, but it falls within the rule allowing recovery for mental anguish, 100 S.W. 292; 136 N.C. 489; 1 Am. & Eng. Ann. Cases, 358; Id. 346; Kirby's Digest, § 7947.

2. That one may recover for physical suffering under the circumstances of this case is clearly established. 9 L. R. A. 670; 2 Thompson on Negligence, § § 2479, and note 2480. Shearman & Redfield on Negligence, § § 560, 605; 50 N.W. 1034.

3. The notice to the company, both from its face and from plaintiff's conversation with the operator, was sufficient. 65 L. R. A. 666; 1 Am. & Eng. Ann. Cases, 349; Id. 358; 100 S.W. 292.

4. The contention of appellant that it was appellee's duty to exercise reasonable diligence to avoid the injury has no place here. The question was not raised below; and, if it had been, it was a question for the jury.

5. It was competent for appellee to introduce the deposition of the witness Howard. It shows on its face that it was taken by agreement of counsel and on interrogatories and cross-interrogatories. It was the property of both parties. 15 Ark. 345; 85 Ill. 284; 43 Ia. 380; 69 Md. 499; 3 Thomp. & C. 269; 3 W.Va. 574; 56 Ala. 411; 4 Bibb (Ky.), 480; 10 S.W. 556; 40 Tex. 124.

OPINION

MCCULLOCH, J. (after stating the facts.)

It is contended on behalf of appellant, upon authority particularly of the case of Western Union Tel. Co. v. Shenep, 83 Ark. 476, 104 S.W. 154, that the facts in this case do not warrant the recovery of damages. We find nothing, however, in that case which necessarily precludes a recovery upon the facts presented in this. The evidence clearly shows that the plaintiff sustained a distinct physical injury on account of the negligent failure to deliver the message, and that appellant's agent received positive information sufficient to put him on notice that such injury might result from the non-delivery of the telegram. While the message itself might not be deemed sufficient on its face to have apprised appellant of the injury which might result, yet the information actually conveyed to the operator at the time was sufficient for this purpose.

Nor was there any error in submitting to the jury the question of mental suffering, as there was some evidence of that character of injury. In the Shenep case, supra, the court said that "anguish over imaginary situations worry and anxiety over business matters, inconvenience and annoyance over the ordinary affairs of life, do not amount to mental anguish as a recoverable element of damage. Such element is limited to social and personal matters, as contradistinguished from business transactions, and contemplates suffering in mind over the real ills, sorrows and griefs of life, and such suffering as would reasonably be contemplated to flow from the...