93 Ark. 415 | Ark. | 1910
(after stating the facts). In some of its instructions the court bottomed appellee’s right to recover solely upon the existence of the contract with appellant to send the message and its failure to do so. The court in these instructions permitted appellee to recover, regardless of whether appellant had been negligent in “receiving, transmitting or delivering” the message. This was error. Under our statute there can be no recovery of damages for mental anguish unless there has been negligence in “receiving, transmitting or delivering messages.”
The purpose of our statute was to allow recovery for mental anguish only in such cases. Arkansas & La. Ry. Co. v. Stroude, 77 Ark. 109; act of March 7, 1903, Kirby’s Dig. § 7947. Under the law of Oklahoma Territory, where the contract was made, and at the time it was made, .there could be no recovery for mental anguish in such cases. But, even if it were otherwise, there was no allegation that appellant was negligent in receiving the message without informing appellee’s father of the rules and conditions under which it would have to be sent, so as to bring the case within the doctrine of the recent case of Western Union Tel. Co. v. Harris, 91 Ark. 602.
Nor was there any evidence that appellee suffered any damage by reason of any negligence on the part of appellant in receiving the telegram for transmission.
The court having instructed the jury that appellant could not be charged with negligence for not handling the message in question before 8 o’clock A. m. at Springfield, Mo., and Fayetteville, Arkansas, appellant had only 25 minutes in which to send the message from St. Louis to Fayetteville by way of Springfield, Mo., in order to get it to appellee in time to enable her to take the 8:40 a. m. train from Fayetteville to Okmulgee. For appellee says it would have required fifteen minutes for her to have reached the train after receiving the message. Under the method of transmitting messages shown by the evidence, we are of the opinion that negligence could not be predicated upon a failure of appellant to have delivered the message in controversy from St. Louis to Fayetteville to appellee in 25 minutes. Appellee’s counsel say it was possible to do so. It may have been possible to have delivered the message to appellee in that time. But that is far from showing that appellant was negligent in not delivering it in that time. That burden, under the instructions, was on appellee. We are of the opinion that, according to the methods required for sending such messages, no negligence has been established in this case.
But, if negligence was shown, then the negligence occurred in Missouri, and no recovery could be had in Missouri for mental anguish alone. The contract itself was not made in this State, nor in a place where there could be a recovery for mental anguish, unaccompanied by physical injury. The negligence, if any, which gave a cause of action, under the statute, for mental anguish did not occur in this State or in any State where damages for mental anguish alone could be recovered.
We conclude therefore that in no possible view of the case was appellee entitled to recover. She does not come within the doctrine of any of the cases in which we have been called upon to construe and apply our statute supra. See Western Union Tel. Co. v. Griffin, 92 Ark. 219, and cases there cited:
The judgment is reversed, and the cause is dismissed.
