Southern Telephone Co. v. King
146 S.W. 489
Ark.
1912
Check Treatment
McCulloch, C. J.

Aрpellee instituted this action below against appellant (a corporation operating a telephone system in the town of Monticello and vicinity) to recover damages alleged to have been sustained by reason of negligence in failing to furnish telephone service. He alleged in his complaint the following state of facts, which the testimony established, viewed in its most favorable light: Appellee resided at Monticello, and was onе of appellant’s subscribers, having a telephone in his residence; his wife and son were both sick, and he was convalescent; about 3 o’clock in thе morning his son grew worse, and needed immediate attention of a physician, and he attempted to call by telephone Dr. Kimbro, his family physician, who lived in another part of town; he got connection with Dr. Kimbro’s residence, but the latter’s wife informed him that the doctor had gone to the country to make a cаll and could be reached by telephoning him at the agricultural school; he then endeavored for a considerable time to get connection with the agricultural school, but could not get a response to his call for the telephone central office. He walked up town, and tried to cаll from a telephone at a livery barn, and again failed to get a response from central. He went to the central office, and, finding it closed, knocked at the door. The operator answered, and, after giving his name, appellee told the operator that he had a sick child, ‍‌​​‌‌​‌​‌​​​​‌​‌‌​​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌‌​​​‌‌​‌​‌‍and wanted to telephone the doctor, and the latter replied: “We are closed until 6 o’clock. I am sorry; but can’t do anything for you until 6 o’clock.” He returned home and again telephoned Dr. Kimbro’s residence and finally secured the latter’s attendance about 8 o’clock, after he returned from the country. The evidence tends to show that a telephone message to the agricultural school would have been sent over by special messengеr to Dr. Kimbro at the residence of his patron in the neighborhood. Appellee alleged in his complaint that “by reason of the excitement, exposure and effort in coming to the office of defendant, his recovery was retarded, and that he was prevented for the period of one week frоm resuming his work, during which time he suffered physical pain,” and he claimed damages in the sum of $25 for loss of a week’s time, $25 for physical pain, and $15 for costs of additiоnal medical attention. He alleged that he suffered great mental pain and anguish by reason of his inability to procure medical aid for his child, and claimed damages therefor in the sum of $250. He also prayed for punitive damages in the sum of a thousand dollars. The jury returned a verdict for appellee, and assessed damages as follows: “For actual damages, as alleged, $50; for mental pain and anguish on account of himself, wife and child, as alleged, $100; fоr punitive or exemplary damages, as alleged, $200.”

We are of the opinion that the testimony does not warrant a recovery of more than nominаl damages. Even if -the negligence of the operator in failing to respond to appellee’s call could be said to have been the proximate cause of his injury, resulting ‍‌​​‌‌​‌​‌​​​​‌​‌‌​​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌‌​​​‌‌​‌​‌‍from exertion and exposure in walking up town to the central office, appellant is not liable, for the reason that it hаd no notice of the special circumstances out of which the damages might arise. Western Union Telegraph Co. v. Raines, 78 Ark. 545; Western Union Telegraph Co. v. Hogue, 79 Ark. 33. It is not claimed that the oрerator was informed until appellee reached the central office that he desired to get connection with the agricultural school fоr the purpose of communicating with his physician. Whatever ‍‌​​‌‌​‌​‌​​​​‌​‌‌​​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌‌​​​‌‌​‌​‌‍physical injury appellee sustained by reason of his trip up town had then accrued, and nоtice to the operator at that time would not render appellant liable for the damages already sustained. Crutcher v. Choctaw, O. & G. Rd. Co., 74 Ark. 358. No damages resulted from any act or omission of the operator after appellant notified her of his desire to communicate with the physician, except the mental pain and anguish which he suffered by reason of his inability to secure the attendance of his physician. This court has steadily adhered to the ‍‌​​‌‌​‌​‌​​​​‌​‌‌​​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌‌​​​‌‌​‌​‌‍rule that "mental suffering alone,unaccompanied by physical injury or any other element of recoverable damages, can not be made the subject of an independent action for damages, * * * and that such suffering does not, of itself, constitute a cause of action. ’ ’ Peay v. Western Union Telegrаph Co., 64 Ark. 538; St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42; Chicago R. I. & P. Ry. Co. v. Moss, 89 Ark. 188; Chicago, R. I. & P. Ry. Co. v. Whitten, 90 Ark. 462; St. Louis, I. M. & S. Ry. Co. v. Groce, 99 Ark. 420. After the decision of this court in the Peay case, the Legislature changed the rule as to telegraph companies negligently failing to receive, transmit or deliver telegraphic messages (Kirby’s Digest, § 7947); but the statute only applies to companies doing a telegraph business, and not to telephones. While the telephone occupies to some extent the same field as the telegraph, and it is in some respects an improvement оn the latter method of ‍‌​​‌‌​‌​‌​​​​‌​‌‌​​‌‌​‌‌‌‌​​​​‌​​‌​‌‌‌‌​​​‌‌​‌​‌‍long-distance communication, still the former does not fall within the definition laid down by the lawmakers in providing that telegraph companies shall be liable for mental anguish. There are authorities which hold that, in the construction of statutes, the word "telegraph” embraces “telephonе,” and that statutes concerning telegraph companies include telephone companies as well. Northwestern Telephone Exchangе Co. v. Chicago, etc., R. Co., 76 Minn. 334. But the method of carrying on the business of telephoning is dissimilar in many respects from the telegraph business, particularly in the method оf transmission. Jones on Telegraph and Telephone Companies, §3 et seq. The statute declares that telegraph companies shall be liablе for mental anguish or suffering on account of negligence “in receiving, transmitting or delivering messages. ’ ’ Now, by a very strained construction of that language, it may be reasoned that a telephone company, in its method of furnishing an apparatus for transmitting sound, “receives, transmits and delivers messages;” but that construction is decidedly strained, for it is evident that, if the lawmakers had had in mind a telephone company, with its methods of doing business, they would have used altogether different language. A telephone company does not receive a message, nor does it transmit and deliver it in the ordinary acceptation of thоse words. It merely furnishes to the patron facilities for carrying on a conversation at long distance. The choice of phraseology shows very рlainly that, while it is possible to give the other construction to the language, the Legislature would have chosen more appropriate words if that construction had been intended. It is not the business of the courts to legislate; and if a change in the law in this respect is desired, the General Assembly is the branch of gоvernment whence the change must come.

The facts of the case do not disclose any element of exemplary damages. At most, only negligence is proved, and that, however gross, is not sufficient to justify an award of damages by way of punishment, without any element of intentional wrong or wilfulness or consciоus indifference to consequences, from which malice may be inferred. St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261.

The judgment is reversed, and judgment will be entered here in appellee’s favor for nominal damages and costs in the lower court.