Western Union Telegraph Co. v. Ford , 77 Ark. 531 ( 1906 )

McCulloch, J.,

(after stating the facts.) 1. Appellant assigns as error the refusal of the trial court to give the following instruction:

“You are instructed that the defendant is justified in observing the usual holidays; and if you find that the delay in delivering the message sued on was due in any degree to the observance by the defendant of January 1 as a holiday, to that extent you will hold the defendant free from blame.”

The rules of the company provide that on holidays the office hours shall be from 8 to 10 a. m. and from 4 to 6 p. m. Texarkana being the repeating station for messages en route to Texas,' an operator remains on duty all day to keep the repeater in order, and the message in question was received at 1145 p. m. by this operator, who placed it on a hook in the office, and no effort was made to deliver it to the sendee until the return of the delivery clerk to the offi'e about 4:45 p. m.

A telegraph company may fix reasonable hours for the receipt and delivery of messages, and the question whether such regulation is reasonable or unreasonable is one of law for the court to declare. Western Union Telegraph Co. v. Love-Banks Co., 73 Ark. 205.

The regulation shown in this case to have been promulgated by the company, fixing office hours on holidays, seems to be reasonable, and it would have been the duty of the court, if requested, to have so declared to the jury. But the instruction in question does not embody any such declaration. It says nothing about reasonableness of the regulation, but tells the jury broadly that the company was free from blame if the delay was due to observance of the holiday. It was misleading, as the jury might have understood from it that observance of the holiday excused the company from diligence in delivering the message. Under the law the company was bound to exercise due diligence, consistent with its reasonable rules, in seeking to make a delivery of the message, and was liable for any negligence in this regard. Appellant can not, without having asked for a proper instruction on the subject, complain of the refusal of the court to give an improper one.

2. It is contended that the evidence was not sufficient to sustain the charge of negligence against appellant, and that the delay in delivery of the message was due solely to the negligent failure of the 'sender to give a sufficient address of the sendee. This-was a question of. fact for the jury, and we think the evidence was sufficient to warrant the finding. The sender may have been guilty of negligence in failing to give a specific address, but the company accepted the address, and undertook to transmit it and to exercise due diligence in promptly delivering it. The deficiency in the address was a proper matter for the jury to consider, and doubtless they did consider it in determining whether diligence was exercised in searching for the addressee to deliver the message. But a finding of negligence on the part of the sender in this respect would not have excused the company from a negligent failure to deliver. The proof shows that the plaintiff was living with her husband, J. A. Ford, only a few blocks from the telegraph office in the business portion of'the city of Texarkana. The name of J. A. Ford appeared in the telephone directory and upon a sign over the door of his place of business. The whereabouts of plaintiff were ascertained the next day, and the message delivered to her by the messenger through inquiry at her husband’s place of business. Her name, stated in the face of the message, indicated that she was a married woman. The jury could rightfully conclude that due diligence required the servants of the company to inquire for plaintiff of a man bearing the name of Ford who was so accessible by telephone as her husband was shown to have been. We can not say that the jury were not warranted in finding negligence under these circumstances.

3. Learned counsel next contend that there can be no recovery in this case because the message was sent from a point in Missouri where the law does not authorize recovery of damages for mental anguish unaccompanied by physical suffering. An instruction to this effect was asked by appellant and refused by the court. The statutes of this State provide that “all telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all' actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company.” Kirby’s Digest, § 7947. The cause of action arose in this State by reason of the negligent act in failing to promptly deliver the message having occurred here. The authorities on. this question are not entirely harmonious, but we think the weight of authority supports the view that the law of this State as to the measure of damages should control, and this view is consonant with sound reason. 2 Wharton, Conflict of Law, p. 1085; Harrison v. W. U. Tel. Co. (S. C.), 51 S. E. 119; Gray v. W. U. Tel. Co., 108 Tenn. 39; Howard v. W. U. Tel. Co. (Ky.), 84 S. W. 764; W. U. Tel. Co. v. James, 162 U. S. 650.

It will be observed that our statute does not make the right to recover such damages depend upon any contractual relation existing between the telegraph company and the person injured by its negligence, but declares in broad terms that all telegraph companies doing business in the State shall be liable for'mental anguish for negligence in receiving, transmitting or delivering messages. In fact, the right of an addressee to recover'damages at ail is not based upon contract, as none exists. “The true view,” says Mr. Thompson, “which seems to sustain the right of action in the receiver of the message, or in the person addressed, where it is not delivered, is one which elevates the question above the plane of mere privity of contract, and places it where it belongs, upon the public duty which the telegraph company owes to any person beneficially interested in the message, whether the sender, or his principal, where he is agent, or the receiver or his principal, where he is the agent.” Thompson on Electricity, § 427.

While this precise question was not presented in the case of Peay v. W. U. Tel. Co., 64 Ark. 538, the effect of that decision was to sustain the right of recovery in the case at bar. The Peay case was decided before the enactment of the present statute allowing recovery for mental anguish unaccompanied by physical injury, and the court, declining to follow the so-called Texas rule, held that no recovery could be had. In that case the message was sent from a point in the State of Kentucky, where such damages were allowable; so, if the doctrine contended for now by appellant is declared to be the law, the Kentucky rule should have been enforced in the Peay case, and the recovery for mental anguish allowed. While, as said before, this question was not discussed in the Peay case, and may have been overlooked by both court and counsel, yet the effect of the decision serves to negative any intention on the part of the lawmakers to adopt the Texas doctrine in full. The present statute was obviously enacted by the Legislature in order to change the rule announced in the Peay case as to the right to recover such damages; and, if we indulge in any speculation at all as to the motive and intention of the lawmakers, we must say that the statute was passed with a full knowledge of the decision of this court holding that no such damages were recoverable in this State for negligence in delivering a message here which had been sent from a State where such damages were allowed.

A somewhat similar question came before the court, recently ’in the case of Arkansas Southern Ry. Co. v. German National Bank, ante p. 482, in construing the effect of the statute 'of this State applicable to a shipment of freight from another State, prohibiting the delivery by a carrier of freight without surrender of the bill of lading. The freight was shipped from a point in Louisiana to a point in Arkansas, and delivered here without surrender of the bill of lading. Damages were sought to be recovered on the ground that the delivery was a violation of the statute. The court held that the statute was applicable and enforcible, though the contract of affreightment was made in another State. The court quoted with approval the following language of the Supreme Court of the United States in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133: “A carrier exercising his calling within a particular State, although engaged in the business, is answerable, according to the law of the State, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law.”

We need not, and do not, decide what would be the effect of the statute if the act of negligence complained of had occurred in the State of Missouri whence the message was sent. That question does not arise in this case. But we do hold that where the act of negligence occurred here, and the injury was sustained here, the statute is enforcible, and gives the right to recover damages for mental anguish, even though such damages are not recoverable in the State whence the message was sent.

Judgment affirmed.