Western Union Telegraph Co. v. Crow , 106 Ark. 117 ( 1913 )

Hart, J.,

(after stating the facts). It is insisted by counsel for appellant that the court erred in refusing to give instruction numbered 3 requested by them, which is as follows:

“If you find from the evidence that plaintiff, J. W. Crow, arrived at Union Station, St. Louis, Missouri, at about 11 o’clock, P. M., on the night of February 18, 1912, and immediately learned that his wife had not come in response to his message, and you further find that he could thereafter, by the use of ordinary care and diligence, have communicated with his wife at Marshall, Missouri, by telegraph or telephone in time for her to have left Marshall, Missouri, and have joined him at Union Station, St. Louis, before 8:30 o’clock on the morning of February 19, and have thence proceeded with him to Ashley, Illinois, then the plaintiff, J. W. Crow, can recover only the cost of the message sued on, and the additional sum it would have cost him to so communicate by wire with his wife, and you will return a verdict in his favor for such sum as is shown by the evidence, and no more.”

We do not think the court erred in refusing to give this instruction. It in effect told the jury that if J. W. Crow learned that his wife had not come in response to his message immediately upon his arrival at St. Louis and that he could by the use of ordinary care have communicated with her by telegraph or telephone in time for her to have readied St. Louis the next morning, he could not recover. The instruction as thus framed does • not take into consideration the circumstances surrounding the parties. Mrs. Crow would have had to have left her home and taken the train at about 2 o’clock in the night time with her baby and the necessary grips. The question of whether or not it was prudent for her to do this was taken away from the consideration of the jury by the instruction, and for that reason the court properly refused to give it. Moreover, the testimony does not show that he learned that she had not arrived immediately upon his arrival at St. Louis. He only learned that she was not at the station, but he said he supposed that his brother had met her and gone on with her. It will be remembered that he testified that when he found his train would not arrive at St. Louis in time to meet his wife he telegraphed his brother to come to St. Louis and meet her. J. W. Crow called up his brother-in-law, who resided in a suburb of St. Louis, and could not get any one. He remained over night in St. Louis and it was not until next morning that he learned that his wife had not come.

It is next contended by counsel for appellant that the verdict in favor of J. W. Crow is excessive, and in this contention we agree with them. We think that under the circumstances of this case the sum of one hundred dollars would be ample compensation for the mental anguish he endured because of the absence of the colisolation which the presence of his wife would have afforded him. His wife was not even acquainted with his father, and only had that affection for him which was engendered by her love for her husband. Appellee Crow was also entitled to the sum of $4.77 for amounts expended by him in an additional telegram and expenses incurred by him in staying over in St. Louis. If appellee J. W. Crow will remit the sum of four hundred dollars within the next ten days, the judgment will be affirmed; otherwise, it must be reversed and the cause remanded for a new trial. Western Union Tel. Co. v. Garlington, 101 Ark. 487.

In regard to the case of Mrs. J. W. Crow, but little need be said. The undisputed facts in this case show that Mrs. Crow was advised of the death of her father-in-law in time for her to have met her husband at St. Louis and could have gone with him to the funeral. Her failure to go was the result of her own indisposition or lack or ordinary diligence on her part. Moreover, the testimony shows that she did not intend to go unless advised to do so by her husband. She had never seen her father-in-law and had no affection for him except such as was prompted by her relation to her husband. Under these circumstances her failure to receive her husband’s message, notifying her to meet him at St. Louis to go to the funeral, was only a source of disappointment to her, and did not cause her mental anguish within the legal definition of the term.

The judgment in favor of Mrs. Crow will be reversed and her cause of action dismissed.