121 Ark. 244 | Ark. | 1915
Appellee recovered judgment for the sum' of $600 to compensate the mental suffering sustained by her as the result of appellant’s alleged negligent failure to promptly deliver a telegram, sent by her to her father. The proof is to the effect that she was visiting her uncle, who was appellant’s manager at Lewisville, Arkansas, and on the 20th day of June, 1914, she determined to go to Thornton, Arkansas, where her parents resided. At about 5:25 P. M. she met her uncle at a restaurant in Lewisville, and asked him to wire her father, a Mr. Young, that she and her baby would reach Thornton that night. Mr. Young did not receive the telegram that night, and it is alleged that this failure was due to appellant’s negligence. The train left Lewisville about 9 P. M. and reached Thornton about midnight. No one met appellee .at the train, and the night being very dark .and, being encumbered with her baby and suit case, she sustained serious nervous disorders as the result of her fright and physical exhaustion.
Appellant interposed two defenses. The first is that appellee’s .agent in sending the message was .aware that Thornton was a day office which closed at 6 p. m. and the message was started too late for delivery before the closing time at that office. The second defense is that Mr. Young was the shipping clerk of the Stout Lumber Company at Thornton and had been in the habit of sending and receiving messages for that company. That the outgoing messages were signed by Mr. Young and were phoned down from the office of the Stout Lumber Company by the stenographer there, and the incoming messages were phoned to the stenographer at the office of the lumber company, .and that the lumber company had a messenger boy who ran errands and delivered messages for the lumber company, .and he received the message in question for delivery to Mr. Stout at about 6 P. M. on the day of its receipt, and that this was the usual hour for the boy to call for messages. And it was further shown that appellant’s business at Thornton did not exceed $125 per month, .and that the larger portion of these receipts was derived from messages received from the lumber company.
It is not denied that when the message was received .at Thornton the operator there phoned it to the lumber company, where it was received by this ¡stenographer at the general office of the company. This was done at 5:50 p. M.
The court, over the objection and exceptions of appellant, ruled out the evidence of appellant’s operator that the stenographer agreed to deliver the message to Mr. Young, on the ground that it was hearsay testimony and not binding on him, but permitted the testimony to stand that the stenographer accepted and received the telegram.
It was shown that it would have been impossible to have delivered the message in any other manner than by telephone before 6 P. M. and the operator at Thornton testified that the rules of the company did not authorize or permit him to deliver messages or transact business after 6 P. M.
It was shown on behalf of appellee that her father would have met her had the message been promptly delivered. That Mr. Young would ordinarily have been found between 7 A. M. and 6 P. M. in the shipping department of the lumber company, and that there wias a private telephone connecting his office with the company’s general office. Mr. Young testified that the message was not delivered to him until the 22d day of June. That he could not recall that he had ever received any telegraph message by telephone from the general office during office hours, but he admitted that he had probably exchanged a telegram with his son-in-law about his daughter’s condition in that manner, the message from him being sent, and the one to him being delivered, by this telephone. That he went to the poistoffice every night, and would have received this message had it been mailed him after it was received at Thornton.
Appellant’s operator admitted that he knew where Mr. Young lived and knew that lie did not work in the general office of the lumber company, to which office the message was telephoned, and that his boarding house was only one hundred or one hundred and fifty yards from Mr. Young’s residence. The agent admitted he could have mailed the message before 6 o’clock, but he stated that he did not regard this as the quickest way of reaching Mr. Young, .and that he adopted the method which he thought, would insure the delivery of the message before 6 P. M.
There was a sharp controversy between appellant’s agent and Mr. Young over certain notations made on the telegram. The agent denied that the notation, “Delivered at 8 A. M.” and the notation, “Filed at 11:30 A. M.,” were on the message when it was sent to Mr. Young, who testified to the contrary. The effect of this contradiction was to disprove the statement of the agent as to the time and manner of the attempted delivery.
In his closing argument the Hon. Tillman B. Parks, of counsel for appellee, stated to the jury that he and Mr. Young had been raised boys together and had loved each other like brothers ever since, and Mr. Young’s veracity was beyond question. The court refused to instruct the jury to disregard this argument, or to withdraw it from the jury.
An instruction numbered 7 was also asked, which was to the effect that appellant owed no duty to deliver the message after 6 o’clock P. M., and that it was not negligence to fail to deliver the message after said hour at the home of the addressee.
Exceptions were saved to the action of the court in giving and refusing other instructions; but we find it unnecessary to discuss the questions there raised.
The majority of the court are of the opinion that no error was committed in refusing appellant’s instructions numbered 5 and 7.
The view of the majority is that instruction numbered 5 was properly refused because the jury was told that the facts there hypothetically stated constituted a defense, and that, if those statements were true, the telegraph company wais 'guilty of no negligence, whereas under the circumstances the jury should have been permitted to say whether or not greater diligence should have been exercised in the attempt to deliver the message.
I do not concur in this view, because I believe the operator should have done the very thing which he did to expedite the delivery of the message, and that reasonable diligence would have required no greater effort on his part than that which he put forth. W. U. Tel. Co. v. Alford, 110 Ark. 379.
I think this holding operates to extend the hours at Thornton, and therefore, conflicts with the case of West. Union Tel. Co. v. Turley, 108 Ark. 92.
For the errors indicated the judgment of the court below will be reversed .and the cause remanded.