79 Ark. 33 | Ark. | 1906
(after stating the facts.) This is an appeal by the defendant telegraph company from a judgment .rendered against it for failure to deliver a telegram. In the complaint plaintiffs asked for $1.25 as pecuniary loss and $1,000 damages for pain and mental anguish. The proof tended to show that by reason of the failure to deliver the telegram plaintiffs were compelled to hire a man to get them a conveyance, and that this expense, with the price paid for the telegram, amounted to $1.75. The jury found a verdict for this amount, and also for $500 for mental pain and suffering. The circuit court gave judgment for the amount of the verdict, but we are of the opinion that the evidence is not sufficient to sustain the judgment.
The excess of fifty cents in the verdict for pecuniary loss over the amount asked in the complaint was evidently a mere oversight, which would have been corrected by the circuit judge, had his attention been called to it, and the only matter that we .need notice here is the judgment for damages for mental anguish - and suffering. Such damages may, under our statute, be recov- ■ ered in some cases, but the statute does not change the rule that when a plaintiff seeks to recover of a defendant special damages on’ account of the breach of a contract he must show that at the time the defendant entered into the contract he had notice of the special circumstances out of which the special damages arose, so that it may be reasonably said, as a matter of law, that such special damages were in contemplation of the parties at the time they made the contract.
“While actions against telegraph companies are not necessarily or usually ex contractu, but ex delicto for a breach of a public duty, the cause of action is so far dependent upon the original contract of sending as to make the rule just stated controlling, and it has been universally applied in this class of actions without regard to whether the particular action is ex contractu or ex delicto,” or whether the damages claimed were for mental suffering or for actual pecuniary loss. 27 Am. & Eng. Enc. Law, 1059; Western Union Telegraph Co. v. Short, 53 Ark. 434; Primrose v. Western Union Telegraph Co., 154 U. S. 1; Hughes v. Western Union Telegraph Co., 79 Mo. App. 133; Arial v. Western Union Tel. Co., 50 S. E. 6; Western Union Tel. Co. v. Coffin, 30 S. W. 896.
Now, the special circumstances in this case were that the sender, A. E. Hogue, and the party to whom the telegram was sent were engaged to be married. He had been sick, and had written to her that he would notify her by telegraph on the day set for the marriage whether he could be present at the appointed time or not. She had received the letter, and was expecting á telegram. The failure to receive it caused her annoyance and mental anguish for which the jury assessed damages. But the evidence does not show that the telegraph company or its agent had any notice of these special circumstances under which the telegram was sent, or that it ought reasonably to have known that a failure to deliver it would inflict such suffering upon the plaintiffs. The words of the telegram itself, “I will be there on the evening train,” were in themselves not sufficient to give notice of these special circumstances, and the evidence does not show that any further notice was given. The facts in proof do not therefore make out a case sufficient to sustain a judgment for damages for mental suffering.
There are other points discussed, but we find it unnecessary to notice them. Unless plaintiffs see proper to enter a remittitur sufficient to cure the excess in the verdict, the judgment will be reversed and cause remanded for a new trial.