King v. Western Union Telegraph Co. , 89 Ark. 402 ( 1909 )

BatteE, J.

This action was commenced on the third day of September, 1907, by Dora King against the Western Union Telegraph Company to recover damages on account of the failure to deliver a message sent to her announcing the death of her father in time for her to view his remains before he was buried. At the conclusion of the evidence the court instructed the jury to return a verdict in favor of the defendant, which they did. Was there any evidence adduced upon which the jury could have returned a verdict in favor of the plaintiff?

Plaintiff was the wife of C. R. King, and resided about four miles from Duxora, Arkansas. Her fathér, J. B. Barham, who lived at Idalia, Missouri, died in the morning of the 24th of July, 1907. Lee Barham, her brother, testified in her behalf that he in the same morning, between 9 and 10 o’clock, delivered to the defendant’s agent at Idalia a message announcing the death of her father, which was directed to her at Luxora, Arkansas; that he explained to the agent the importance of the message, telling him that plaintiff resided about four miles from Luxora, out in the country, and witness wanted to know his charge for sending and delivering the telegram, and he said his charges were twenty-five cents, and he (Barham) paid that amount, and that he saw the message sent. The undisputed evidence shows that was the regular charge for sending and delivering the message at Luxora; and that there was nothing said about extra charges for messenger services; no offer to pay anything, except the regular fee of twenty-five cents; 'and nothing said about guarantying expense of delivery. The message was promptly delivered to defendant’s operator at Luxora at 10 ¡53 a- m. on the day it was sent. The operator immediately sent a boy to look for Mrs. King, and he returned in a short time and reported he could not locate her. The operator then went out in town and inquired for her, and found that she lived six or eight miles in the country. He then inquired about a telephone,- and found that she had none. He then mailed a copy of the telegram to Mrs. King at the post office in Luxora. This was about 12 o’clock noon. The evidence shows that the delivery limit at Luxora for telegrams was embraced within a radius -of half a mile from the telegraph office, that the nearest telephone to Mrs. King which connects at Luxora is a mile and a half. She was not in Luxora at the time the telegram was received at that place.

Under the foregoing facts and circumstances the defendant was guilty of no negligence in the failure to deliver the message sent to Mrs. King and is not liable for damages, and the court committed no error in instructing the jury to return a verdict in favor of the defendant. Arkansas & Louisiana Railroad Co. v. Stroude, 82 'Ark. 117; Western Union Telegraph Co. v. Taylor, 3 Texas Civ. App. 310; Whittemore v. Western Union Telegraph Co., 71 Fed. Rep. 651.

Judgment affirmed.