Western Union Telegraph Company v. Woodard

• Decision Date: 11 November 1907
• Citation: 105 S.W. 579,84 Ark. 323
• Parties: WESTERN UNION TELEGRAPH COMPANY v. WOODARD
• Court: Arkansas Supreme Court

105 S.W. 579

84 Ark. 323

WESTERN UNION TELEGRAPH COMPANY v. WOODARD

Supreme Court of Arkansas

November 11, 1907

Appeal from Arkansas Circuit Court; Eugene Lankford, Judge affirmed.

Affirmed.

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

1. Plaintiff being the addressee, no contractual relations existed between him and the appellant. His right to recover is therefore based on tort, and none is shown.

2. If the burden was upon appellant to show where the negligence occurred, then it was abuse of discretion to deny its application for a continuance. 21 Ark. 460; 60 Ark. 564.

3. It was error to allow the witness Woodard to testify as to conversations had with the sending operator after the message had been sent. They were hearsay and inadmissible. 57 Ark 287; 49 Ark. 207; 34 Ark. 451; 29 Ark. 512; 14 Ark. 86.

T. C Trimble, Geo. M. Chapline, Joe T. Robinson and T. C. Trimble, Jr., for appellee.

1. The right of the addressee is based, not upon privity of contract, but upon the public duty which a telegraph company owes to any person beneficially interested in the message. 77 Ark. 531; 79 Ark. 448. And the addressee may recover, under laws of the State, where the message is delivered or sent. 86 S.W. 982; 93 S.W. 34; 51 S.E. 119; 4 Current Law, 1165.

2. No sufficient showing of diligence having been shown, the application for continuance was properly refused. Moreover, the evidence for which the continuance was sought was immaterial; and it is shown that there were various routes by which the message could have been transmitted, and the fact that there was "trouble with the wires at St. Louis" was no defense. 2 Shear. & Redf. on Neg. 5 Ed. § 540.

3. Woodard's conversation with the operator was properly admitted, being a part of the res gestae. 74 S.W. 560.

OPINION

HILL, C.

J. R. S. Woodard brought suit against the Western Union Telegraph Company for negligence in the transmission and delivery of a telegram from his father notifying him of the death of his sister, alleging that the failure to transmit and deliver the telegram to him prevented him from attending the funeral of his sister, thereby occasioning him mental distress. He recovered judgment, and the telegraph company has appealed.

The message was sent from Fayetteville, Tennessee, to Stuttgart, Arkansas. There was evidence that it was received by the operator at Fayetteville, Tennessee, and by him forwarded to Nashville, Tennessee, there to be transmitted to St. Louis, and from there to be transmitted either through Pine Bluff. Arkansas, to Stuttgart, or direct to Stuttgart, according to the hours in which it was received at St. Louis.

It was not received at Stuttgart, and there is no evidence where it was lost in transit. The answer alleged that the failure to transmit was due to troubles with the wires between St. Louis and Stuttgart, and that by the exertion of diligence it had been unable to transmit it; but there was no evidence to sustain this allegation.

There were statements of the operator at Fayetteville, Tennessee, as to the transmission of the telegram to Nashville, anti its receipt there and its failure to reach Stuttgart, and other declarations of the agent that were outside the issues. These declarations were inadmissible. 2 Wigmore on Evidence, § 1078.

The facts contained in these declarations are not material; and, besides, the company in its answer admitted that the telegram was duly received in St. Louis, and not transmitted to Stuttgart. Therefore, this incompetent evidence had no bearing upon any of the real issues of the case.

2. It is insisted that there can be no recovery in this case because there were no contractual relations between the company and the plaintiff, as he was the addressee of the telegram. This is the English rule upon the subject, and there are a few cases in America that have followed the English courts. But the great weight of authority--in fact, almost all of the American authorities--are against the rule. It has become so thoroughly established that it is called the "American doctrine" on the subject to allow the addressee of the telegram to recover for damages flowing from a failure to deliver or correctly deliver the telegram sent him. Joyce on Elec. Law, §§ 107-8; 21 Enc. Plead. & Prac. 509; Thompson on Law of Elec. 422-7; Jones on Tel. & Tel. Companies, §§ 472-7.

This court early aligned itself with the American decisions. Western Union Tel. Co. v. Short, 53 Ark. 434, 14 S.W. 649. Recently it reiterated the right of the addressee to recover under the mental anguish statute. Western Union Tel. Co. v. Ford, 77 Ark. 531, 92 S.W. 528.

While the right to recover by the addressee is almost universally recognized in America, yet the grounds of recovery are variously sustained; some of the courts holding that the contract of the sender inures to the benefit of the addressee, and others holding that it is an action of tort, and others holding that it is a breach of public duty. Jones on Tel. & Tel. Companies, 476-482; Thompson on Law of Elec, § 427; Joyce on Elec. Law, § 1013.

3. It is said that it is not shown that this telegram ever reached Arkansas, but that on the contrary it is made distinctly to appear that it did not reach either the Pine Bluff or Stuttgart office, and they were the offices through which it would have reached the State. It is argued therefrom that no tort occurred and no negligence is shown to have been committed in Arkansas, and that consequently no action can be maintained here.

A somewhat similar question was presented in the Ford case, supra. A message was sent from Missouri, where the law does not authorize recovery of damages for mental anguish. But the evidence in that case showed that the telegram was transmitted to Arkansas, and that the negligence occurred in this State. The court did not go beyond that point in determining the principle controlling it.

In the case of Arkansas & La. Ry. Co. v. Lee, 79 Ark. 448, 96 S.W. 148, it was contended that there should be no recovery on account of a negligent delivery in Louisiana, where the law does not permit recovery for mental anguish. But the facts in that case showed the negligence was in Arkansas in the transmission from Nashville to Hope by the railroad company, and from Hope to Shreveport by the telegraph company. The court held that the negligence was in the transmission here, not in Louisiana; and did not go beyond the facts in determining what would have been the effect, had there been negligence in delivery in Louisiana.

Therefore, this case presents a different phase of the question that has heretofore been before the court. The question is simplified by the fact that in Tennessee, the State from Which this telegram was sent, mental anguish is a recoverable element. Wadsworth v. Western Union Telegraph Co., 86 Tenn. 695, 8 S.W. 574; Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S.W. 725; Gray v. Telegraph Co., 108 Tenn. 39, 64 S.W. 1063.

As Will be seen by the above-cited cases, Tennessee was one of the States which sustained such recovery by judicial construction, and such actions are not dependable upon statute, as they are in Arkansas....