113 Ark. 545 | Ark. | 1914
(after stating the facts). It is first contended by counsel for defendant that the latter had no notice that it was contemplated that the funeral would be postponed. The testimony shows that if the message had been delivered on the afternoon on which it was sent the plaintiff and his family could not have left Warren until 2 o ’clock a. m. the next morning, and could not have arrived at Doniphan until between 9 and 10 o’clock on the morning of the 18th inst.; that the funeral was had at 4 o’clock on the evening of the 17th inst. Therefore, they contend that the plaintiff and his family could not have attended the funeral, had plaintiff received the message on the afternoon on which it was sent, and that the language of the telegram did not convey any notice that the funeral would be postponed.
In the case of Harrison v. Western Union Telegraph Co., 143 N. C. 147, 10 Am. & Eng. Ann. Cas. 476, in regard to a similar contention, the court said:
“We think the learned counsel for the defendant takes a view much too restricted when he contends that the only purpose of the telegram was to notify the mother of the hour of the interment, and that nothing else was reasonably within the contemplation of the parties. The evident purpose was to notify the stricken mother at once that her son was dead, to the end that she might come without delay and have the melancholy pleasure, and perform the sacred duty, of being with his remains as long as possible before they were committed forever to the grave.
“The fact that the hour fixed for the funeral is stated in the telegram is >a mere incident to the general purpose for which the telegram was evidently sent. ’ ’
So it may be said here the language of the telegram notified the defendant of the near relationship between the plaintiff, the sender of. the telegram, and the person named in it. The message itself suggested that its object was to notify the plaintiff of the death of a near relative, and also carried with it the suggestion that if there was not sufficient time for the plaintiff to arrive at the hour named in the message the funeral would be postponed until he could arrive.
It is next insisted by counsel for defendant that there was no competent testimony tending to show that the funeral would have been postponed had the message been received from the plaintiff to the effect that he desired to attend it. • We do not agree with them in this contention. The son and son-in-law of the deceased testified that they assisted Mrs. Upshaw in making the funeral arrangements for her deceased husband, and that it was understood and agreed between themselves that 'the funeral would be postponed if word was received from the plaintiff and his family that they desired to attend; that the object in sending the message to the plaintiff was to notify him and his family of the death of Mr. Upshaw in order that they might attend the funeral. The son and son-in-law having testified that they assisted in making the funeral arrangements, their testimony in regard to the postponement of the funeral was not hearsay, and was therefore competent to show that the funeral would have been postponed had the plaintiff notified them to do so.
It is next insisted by counsel for defendant that it is not liable, because the plaintiff did not live within the free-delivery limits of the telegraph company at Warren, and that no fee was paid to send a special messenger to deliver it. The testimony shows that the plaintiff was a night watchman for the Arkansas Lumber Company and lived just outside of the delivery limits of the telegraph company at Warren; that the lumber company had an office within the free delivery limits at Warren, and that it was the custom of the timekeepers to deliver . telegrams to employees which were sent to its office within the free delivery limits; that the plaintiff was well known to the officers of the lumber company there, and that the lumber company would have delivered tbe message to Mm, had it been delivered to its office within the corporate limits of Warren. The question of whether the defendant company, by the exercise of ordinary diligence, could have delivered the message to the plaintiff within its delivery limits, under the facts and circumstances adduced above, was one of fact for the jury, and was properly submitted to it for its determination. Arkansas & Louisiana Ry. Co. v. Stroude, 82 Ark. 117. See also Western Union Telegraph Company v. Webb, 94 Ark. 350. It will be remembered that, although the telegraph operator at Warren testified that he inquired at the office of the Arkansas Lumber Company for the plaintiff and was told that he worked for the company but that Ms address and whereabouts were not at the time known, the timekeeper for the lumber company testified that he did know the plaintiff, and that no inqMry was made of him by the telegraph company. It was also shown that if the message had been delivered to the lumber company its employees would have -delivered the message to the plaintiff.
It is next contended that the verdict was excessive; and in this contention we agree with counsel for defendant. It is true that in the case of the Western Union Telegraph Company v. Rhine, 90 Ark. 57, we allowed a recovery of $400 under somewhat similar circumstances. There it was shown that the body became badly decomposed and offensive odors came from it, and we said it could have afforded the mother but little consolation or satisfaction to have viewed her son’s remains in such condition, if indeed it was practical for her to view them ■at all. There is a great-difference, however, between the affection existing between a mother and her son and a son-in-law and his father-in-law. The body of the deceased in the present case was not embalmed, and the undertaker testified that the body could not have been kept longer than twenty-four hours without becoming decomposed. Mr. Upshaw died on the mormng of the 16th inst. and was buried at 4.o’clock in the afternoon on the next day. The testimony shows that, had the telegram been delivered to the plaintiff without delay, he could not arrive at Doniphan until between 9 and 10 o’clock on the morning of the 18th. He would then have had to travel thirteen miles to the, residence where the deceased’s body lay, and by the time he arrived there the body would haveheen necessarily discolored and badly decomposed. Therefore, instead of seeing the features of Mr. Upshaw as they appeared in life, he would only have seen his discolored and decomposed body and have been permitted to follow it to the grave. The plaintiff had not seen his father-in-law for seven years, and did not during that time visit him, although a correspondence was kept up between his family and-that of his father-in-law. The plaintiff himself, however, had not written to his father-in-law during these seven years. The son and another son-in-law lived near Reuben Upshaw and made all arrangements for the funeral. There was no duty devolving upon plaintiff in that regard, and all he could have done would be to follow the body to the grave. We think under the circumstances related above that the verdict of $250 was too much. We think that $50 would have been a sufficient amount to compensate plaintiff for all mental pain suffered by him. The judgment, therefore, will be reversed, and judgment will be entered here for plaintiff in the sum of fifty dollars.
