95 Ark. 214 | Ark. | 1910
(after stating the facts.) “A telegraph company owes a duty to the transmission and delivery of messages only to persons of whose beneficial interest in the telegram the company receives information from the face of the telegram itself or from other sources; and it is liable for special damages only where notice of the facts which give rise thereto is received either from the face of the telegram or from other sources.” Western Union Tel. Co. v. Weniski, 84 Ark. 457; Western Union Tel. Co. v. Blackmer, 82 Ark. 526.
It owes a duty to the party whose beneficial interest appears from the face of the telegram because injury to such person is the natural and probable consequence of its want of care. We think the body of the message brings this case within the rule, and that appellant ought reasonably to have anticipated' from the language of the telegram that the party interested would suffer mental anguish. ■
The principal contention made by counsel for appellant is that the court erred in giving the following instruction:
“The jury are instructed that, upon receipt of the message, it became and was the duty of the defendant to use reasonable effort for the prompt delivery of .same; and if you believe from a preponderance of the evidence that it failed -to use such effort, then and in that event you are told that it was guilty of negligence. As to whether, under the facts and circumstances detailed in evidence by the witnesses, the defendant company was negligent in the delivery of this message is a question to be determined by you from all the evidence in the case.”
They urge that the court should have told the jury as a matter of law that appellant discharged its duty when it learned that the addressee of the message was not in Magnolia, and that it owed no duty except to deliver the message to him in person. We think the question of negligence in the delivery of the message, under the facts and circumstances of this case, was properly left to the jury to determine.
“Whether the messenger who is charged with the delivery of the telegram, and fails to present it at the residence or place of business of the addressee, has used ordinary diligence, such as the law requires, is a question of fact for the jury.” Western Union Tel. Co. v. Mitchell, 40 L. R. A. (Tex.) 209; Pope v. Western Union Tel. Co., 9 Ill. App. 283; Western Union Tel. Co. v. Woods, 44 Pac. (Kan.) 989; 2 Joyce on Electrical Law, § 744.
At least ordinary and reasonable effort must be made to deliver the message. The undisputed evidence in this case shows that if the railroad company had delivered the message at the residence of Mr. Burleson, where Mr. Menifee and family were staying, the plaintiff would have received it, and could have reached the bedside of her husband before his death.
It is next insisted that the verdict is excessive. The amount recovered was $750. Where there is1 no fixed rule of compensation, the theory of the law is that the verdict of the jury is conclusive, unless it appears to be the result of passion or prejudice. In the present case the negligence of the defendant prevented a wife from reaching the bedside of her dying husband and ministering to him; and wre do not think the verdict was excessive.
The judgment will be affirmed.
