Western Union Telegraph Co. v. Evans , 1913 Ark. LEXIS 4 ( 1913 )

Kirby, J.,

(after stating the facts). Appellant contends that the court erred in not directing a verdict in its favor and that the damages recovered are excessive.

The telegraph company was under no obligation to do anything further, after it sent the message, in accordance with its contract, to its agent at Hot Springs and discovered that there was no such person as the addressee living there and would have incurred no liability if it had stopped its efforts and failed to deliver the telegram, but, having undertaken to deliver it to the addressee at Little Bock, upon the direction of his brother-in-law at Hot Springs, at the usual additional charge for forwarding, it became liable for negligence in failing to deliver it promptly. No reason is shown for failure to deliver this telegram for four hours after its receipt at Little Bock at the office of appellant, and, unquestionably, if it had reached the home of appellee before noon, or before his leaving after noon, for his place of work, it would have been received in ample time for him to have reached the place of burial of his mother on the morning of the day she was to be buried in the afternoon. Neither will it be questioned, that a delivery of the telegram to his wife, at his residence, the place to which it was addressed at 1:10 o ’clock was a delivery of the message and he, himself, testified that his wife was authorized to receive it. W. U. Tel. Co. v. Trissal, 98 Ind. 566.

Appellee’s wife did not testify in the case on account of her condition, expecting shortly to be confined, and if she made any further effort to notify her husband of the arrival of the message than to call for him over the phone at the office of the plumbing company for which he was at work and leave directions for him to call her immediately upon his return, it is not shown.

The telegraph company was grossly negligent in failing for four hours to deliver this telegram to the addressee, within sixteen blocks of its office, who had advised it beforehand that he expected a death message and had its agents to write down his address that there ■might, be no unnecessary delay in the delivery thereof. The message on its face, apprised the company of the relationship existing between the parties and that damage might result from the delay in its delivery.

It was through no fault of appellee that the message did not reach him sooner and the question of whether he was chargeable with such contributory negligence as would bar his recovery after the message was in his absence delivered at his home to his wife at 1:10 p. m. in not being able to reach and take the 3:40 train thereafter, was a question for the jury.

Of course, he might have had ample time to have done so if, upon the phone call of his wife for him at the plumbing office, after the delivery of the telegram to her, a messenger had been sent to the place he was at work to notify him of the contents of the telegram and it may be that the wife was negligent in not notifying the man in charge of the plumbing office, under whose direction he was at work, of the contents of the message, and requesting him to send a messenger for her husband, instead of leaving directions upon not finding him in that he call her upon the phone immediately upon his return. Such procedure might have resulted in the receipt of the information by appellee in time for him to have taken the train and attended the funeral of his mother, but it might not have been practicable for the plumbing office to send a messenger for appelee and it might have refused to do so, and we can not say, as a matter of law, that this was such negligence, chargeable to him as would bar his recovery. Neither will this court say, as a matter of law, that appellee was guilty of such negligence after receiving information of the receipt of the telegram upon his return to the plumbing office, forty minutes before the departure of the train in not reaching the station in time to take the train and arrive at the funeral, under the circumstances of this case. He was a poor man, accustomed to traveling upon the street cars, and concluded, knowing the schedule of the street cars as he did, that he would not have time to reach home, change his clothes, get his ticket, stop at the bank and draw his money therefrom and reach the depot in time. It, of course, could have been done, if he had resorted to the use of an automobile or taxicab, but he was not accustomed to this method of rapid transit, and this court can not say, as a matter of law, that he was negligent in failing to employ it under the circumstances and in the emergency and under the shock of the realization of the death of his mother, which, although expected, was necessarily a shock; it was properly a question for the jury under all the circumstances, as to whether or not he was guilty of such negligence in failing to reach' the train after he received the information of the contents of the message in time for arrival at the place of his mother’s funeral before the interment and the jury have decided the question in his favor, upon instructions which we do not find erroneous.

The court, however, is of the opinion that the verdict is grossly excessive. The burial was not to take place at the home of the man’s dead mother among his relatives and the family friends, but in a distant town in another State away from the place of death, where the body was taken for burial and little opportunity could be afforded for consolation by being with the members of the family and friends. W. U. Tel. Co. v. Garlington, 101 Ark. 487, 142 S. W. 854.

If a remittitur is entered within fifteen days, reducing the judgment to $500, it will be affirmed; otherwise, it is reversed and the cause remanded for a new trial.