Western Union Telegraph Co. v. Gillis , 89 Ark. 483 ( 1909 )

Hart, J.,

(after stating the facts.) Counsel for appellant assigns as error the action of the court in giving the following instruction:

“4. The court instructs the jury that if a day message is received for transmission by defendant company, it then becomes their duty to transmit same as far as possible, even though it is unable to reach the destination before seven o’clock p. m. of that day, and, should such message be received at its destination after seven o’clock p. m., it becomes the duty of said company to deliver such message within the limits of its free delivery district.”

In the cases of Western Union Tel. Co. v. Love-Banks Co., 73 Ark. 205, and Western Union Tel. Co. v. Lord, 77 Ark. 534, it was held that a telegraph company may establish reasonable office hours for the transmission and delivery of telegrams, and that the reasonableness of a rule adopted by it relative to the hours of conducting its business at a certain office is for the court, and not for the jury. The court so instructed the jury in this case; but it is insisted by counsel for appellee that, under the proof as developed in the case, the instruction in question was a proper one. They claim that the instruction, although peremptory in effect, is warranted by the testimony of Hugh Bowers, which, it is j-sisted, is uncontradicted. We cannot agree with their contention. The book of rules of the company shows that their hours for receiving and delivering messages at DeWitt was from 7 a. m. to 7 p. M. and that no night office was maintained there. It is conceded that the message in question was not received until between 7:30 and 8 o’clock p. m. Bowers testified that he formerly worked for the company, and that if a message was started as a day message and received by the operator at its destination after office hours, he should deliver it, and also that the operator, seeing that it was an important message, should have delivered it. The operator of appellant at DeWitt testified positively that there was no night office of the company at that place, and that under the rules of the company the hours for receiving and delivering messages were from 7 A. m. to 7 p. m. Thus it will be seen that there is a conflict between the evidence of the operator at DeWitt and that of Bowers. The jury might have inferred from the testimony of the former that the company owed no duty to deliver the message after 7 o’clock p. m. ; and from the testimony of the latter -the jury might have drawn the inference that the rule had been abrogated to the extent of requiring the company to deliver a message which was started as a day message and received at its destination after the hours prescribed by the rules of the company for transacting business. Therefore, there being a conflict in the testimony and one from which reasonable minds might draw different conclusions, the court erred in declaring as a matter of 'law that, under the facts stated in the instructions, it became the duty of appellant to deliver the message.

2. It is also insisted by counsel for appellant that the court erred in refusing to permit the introduction in evidence of the order of commitment, the affidavits therewith and the copies of the letters mailed from the asylum to appellee and her father. The facts that Mrs. Myers became insane, that she was duly committed to the asylum in a few days after the telegram was sent, and died there in a few days thereafter, were established by the uncontroverted evidence in the case. The letters of Dr. Saner to appellee were read to the jury. Hence these alleged assignments of error pass out of the case. The affidavit of Dr. Matlock, which accompanied the order of commitment, was read to the jury for the purpose of contradicting Dr. Matlock, who was a witness in the case, and was competent for that purpose. The affidavit of Dr. Cheatham was properly refused to be introduced in evidence. He was not a witness in the case, and his ex parte affidavit could not be used as independent evidence. Smith v. Feltz, 42 Ark. 355.

3. Counsel for appellant insist that the court 'erred in permitting appellee to recover for mental anguish because it does not appear that, if the telegram had been promptly -delivered, she could have reached her mother before she became irrational. The view we have already expressed will necessitate a new trial of the case, and on that account we do not deem it proper to discuss the evidence on this point, except to say that the evidence was sufficient to warrant the jury in finding that, had the message been promptly delivered, appellee could and would have reached her mother before she became irrational.

For the error in giving the 4th instruction as indicated in the opinion the judgment is reversed, and the cause remanded for a new trial-