117 Ark. 210 | Ark. | 1915
This is a suit for damages for mental anguish', ¡alleged to have ¡been caused by the negligence of the telegraph company, in failing to promptly transmit and deliver the following message from Dallas, Texas, to appellee at his home in Eureka Springs, Arkansas, relative to the condition of his daughter:
“Dallas, Texas, July 16,1913.
“ J. W. Holder, care Mrs. Bettie Burkey, 60 Paxton Street, Eureka Springs, Ark.
“ Lula grew worse at 8 a. m. Is unconscious. Don’t be alarmed, but if you want to see her alive, I would not take chances, but I would come at once. Ed and I are with her. Wire me if you are coming, or not. Edith at home. ’Phone her.
“Joseph W. Allen.”
The daughter was quite ill, .as the result of childbirth, at a sanatorium in Dallas, and the message was filed for transmission by her brother-in-law with the company, at about 2 p. m. It did not reach the appellee until 7:35 o ’clock of that evening, although it was received at 4:40, too late for him to catch the 8:30 train out that night, and make the best connection to Dallas, thus causing a delay in reaching the bedside of his'daughter of thirteen hours. The daughter remained unconscious for two or three days and recovered.
The telegraph company denied the allegations of the ■ complaint, and set up in paragraph 2 of its answer that ■the message was delivered and accepted by it, subject to certain terms and conditions in writing; that the defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message beyond the amount received for sending the same; that this was an unrepeated message for the sending of which it was only paid fifty cents, that the message was interstate, and as such, was interstate commerce, that by its rules it was authorized to classify messages and to limit its liability when so classified, and that according to the contract and classification of messages, could not be held responsible for damages in .a greater sum than $50 under- its reasonable rules; that the classification was known to and approved by the Interstate Commerce Commission and under the stipulations of the contract, its liability should not exceed the sum of fifty cents, and in any event the sum of $50, with interest.
The court sustained a demurrer to the paragraph of appellant’s answer, setting out its rule limiting its liability for unrepeated messages, such as this was, to not exceeding fifty times the amount charged for sending same, and in any event, to not more than $50, which it is contended was error.
It is insisted further that the message being an interstate one, our statute allowing the recovery of damages for mental anguish for the negligent failure to transmit and deliver same, is a burden upon interstate commerce, beyond the power of the State to impose.
In Western Union Tel. Co. v. Compton, supra, this court, after affirmihg a judgment for damages for mental anguish, on rehearing reversed same and reduced the judgment to $50, following the authority of the Supreme Court of the United States in Western Union Tel. Co. v. Brown, 234 U. S. 542, 58 L. Ed. 1457.
In a later case of Western Union Tel. Co. v. Johnson, 115 Ark. 564, 171 S. W. (Ark.) 859, -a -s-uit for damages for mental anguish for the failure to deliver a telegram sent from Arkansas to Mississippi, the court followed the doctrine of the Compton case, and held that damages for mental anguish occasioned by the failure of a telegraph company to transmit or deliver la message, an interstate one, could not be recovered, following the Supreme Court of the United ¡States in its determination that a statute providing for the recovery of mental anguish in such eases w¡as an attempt to regulate the conduct of telegraph companies in transmitting messages from one State to another in interstate commerce.
The majority of the court is of opinion that this case is not distinguishable from that of Western Union Tel. Co. v. Brown, notwithstanding the fact that each State, the one from which the message was- sent as well as the one where it was delivered, provide by statute for the recovery of damages for mental anguish for the negligent failure to transmit and deliver such messages.