79 Ark. 448 | Ark. | 1906
(after stating the facts.) 1. It is argued that the “mental anguish” statute does not reach to this case; that there was a contract to deliver the message in Louisiana; that a failure to promptly deliver in Louisiana was the cause of action, and this statute was not in force there, and hence from a failure to obey it without the State no cause of action arose. The facts do not support the argument.
The statute in question predicates the action on “negligence in receiving, transmitting or delivering messages.” Kirby’s Digest, § 7947. If this action was based on negligence in the delivery of the message, it would have to be dismissed for want of evidence to sustain it. The undisputed facts.in that regard are: The message was received at Shreveport, La., from Hope, Ark., at 11:5o A. M.; that the Sunday rest hours began at 11:3o A. M. and extended to 3 P. M.; that this was a reasonable regulation has not and can not be gainsaid; that the message was received at Leesville from Shreveport at 3^25 -P. M.; that the train which Mr. Lee would have taken, had he received the message in time, left Leesville at 1:2o P. M.; that the operator promptly ascertained Mr. Lee’s whereabouts in another town, to which he had gone on train leaving Leesville at 1:2o, and delivered the message over long distance telephone, and this promptness and kindness of the operator enabled him to catch the next train. The Western Union received the message at Hope, Ark., at 10:57, and, while it required only one minute to transmit it, yet it failed to reach Shreveport until 11:50. Although called upon for an explanation, the operator is unable to account for this delay. Had the - Hope operator promptly transmitted the message, it is clear that it would have reached Shreveport before 11:3o, the beginning of the Sunday rest hours, and would have reached Mr. Lee in ample time to have enabled him to have attended his father’s funeral. The only evidence of negligence against the Western Union, and there is this substantial negligence against it, occurred in transmitting from Hope to Shreveport. The evidence leaves but little doubt that the operator at Nashville did not come to his office until near eleven o’clock, although the Sunday office hours were between eight and nine o’clock, and the message was delivered to the station clerk in charge of the office within those hours. I-Ience the railway company’s negligence was in transmitting from Nashville to Hope. In W. U. Tel. Co. v. Ford, 77 Ark. 531, this court recently decided where a message was sent from Missouri into Arkansas, and there was negligence in failing to deliver in Arkansas, that the cause of action arose in Arkansas, and this statute was applicable. That case is controlling here. The negligence was not in the delivery in Louisiana, but in the transmission in Arkansas, and therefore the cause of action arose in Arkansas, and the statute applies.
2. The next argument presented is that there was no proof of negligence against the railway company in sending the message. The discussion of the preceding proposition develops the opinion of the court that there was abundant evidence, in fact, practically undisputed evidence, of great negligence in both the Nashville and Hope operators. The jury could not well have returned a verdict other than the one they did return, so far as the question of negligence is concerned.
3. It is insisted that there should be no recovery because the message was delivered to the station clerk, who informed the sender that the operator would not be there for an hour. The station clerk was assistant to the agent, who was also operator; he was in charge of the office, and received the message for transmission, and accepted the toll therefor. A statement of these facts is sufficient to answer this argument.
4. It is insisted that because the message was sent on Sunday there can be no recovery, on the theory that a contract made on Sunday is void, and no cause of action can grow out of it. If the company had refused to receive the message because it was Sunday, and it would not compel its employees to labor on the Sabbath, or if this action was based on a contract, then the compan)'- could raise the question it desires to .raise herein; but that question can not enter into this case because the action is purely on the statute, and the action created by the statute is for negligence in receiving, transmitting and delivering a telegram. When a message is received for transmission by the proper agents of the telegraph company, for negligence in these particulars aforesaid a cause of action is created, and it is upon that cause of action, and not any contractual rights, that this action is predicated.
Other questions have been presented in argument, and have been fully considered; but, as they present no questions of law applicable to the facts, a discussion of them would not be profitable.
Judgment is affirmed.