Western Union Telegraph Co. v. Hanley

McCueeoch, J., (after stating the facts.) It is contended on behalf of appellant, upon authority particularly of the case of Western Union Tel. Co. v. Shenep, 83 Ark. 476, that the facts in this case do not warrant the recovery of damages. We find nothing, however, in that case which necessarily precludes a recovery upon the facts presented in this. The evidence clearly shows that the plaintiff sustained a distinct physical injury on account of the negligent failure to deliver the message, and that appellant’s agent received positive information sufficient to put him on notice that such injury might result from the non-delivery of the telegram. While the message itself might not be deemed sufficient on its face to have apprised appellant of the injury which might result, yet the information actually conveyed to the operator at the time was sufficient for this purpose. Nor was there any error in submitting to the jury the question of mental suffering, as there was some evidence of that character of injury. In the Shenep case, supra, the court said that “anguish over imaginary situations, worry, and anxiety over business matters, inconvenience and annoyance over the ordinary affairs of life, do not amount to mental anguish as a recoverable element of damage. Such.element is 'limited to social and personal matters, as contradistinguished from business transactions, and contemplates suffering in mind over the real ills, sorrows and griefs of life, and such suffering as would reasonably be contemplated to flow from the failure to acquaint the person with the tidings sought to be conveyed.” In that case the alleged mental anguish for which the court held there could be no recovery was over an imaginary situation, or worry concerning the possibility of the loss of employment — an emergency which really did not arise. In the case at bar, however, the plaintiff, on account of the negligence of appellant’s agent, was compelled to suffer delay at midnight in a deserted railway station, away from her friends and relatives. She said that she suffered “uneasiness of mind,” and it is reasonable that she should have done so under those circumstances. Authorities are not wanting which sustain recovery for mental anguish under such circumstances. Postal Tel. Cable Co. v. Terrell, (Ky.), 100 S. W. 292; Green v. W. U. Tel. Co., 136 N. C. 489; Barnes v. W. U. Tel. Co., 27 Nev. 438. Appellee’s language employed .in describing her mental injury does not convey to the mind an impression that the suffering was either acute or very extensive in its character; still it conveys the idea of mental suffering, and was sufficient to go to the jury, together with the other facts and attending circumstances, as tending to show a recoverable injury, under the mental anguish doctrine. Certainly, it is not unreasonable to conclude that, in the situation in which she was placed by appellant’s negligence, she endured considerable anxiety and mental suffering. There are some authorities which hold that the mental anguish doctrine must be limited to instances of sickness or death; but there is a conflict in the authorities on this point, and those cited herein fully sustain the contrary view, which we think is more in accord with sound reason. This court in the Shenep case, supra, lays down the rule limiting recovery only to “social and personal matters, as contradistinguished from business matters.” The alleged negligent act did not occur in this State, nor was the message sent to or from a point within this State. Therefore, our statute has no application. But the rule allowing mental anguish for negligent failure to deliver a telegram has been sustained by the courts of both Tennessee and Kentucky. Therefore, there can be a recovery here for a message sent from one of these States to the other. Western Union Tel. Co. v. Woodard, 84 Ark. 323. We think that the proof in this case of physical and mental suffering was sufficient to warrant a verdict for the amount of damages allowed by the jury. Error of the court is also alleged in allowing appellee, over appellant’s objection, to read to the jury the deposition of a witness taken in the State of Kentucky at the instance of the appellant, but which its counsel declined to introduce. This court in Sexton v. Brock, 15 Ark. 345, laid down the rule that a party to an action had no right to read to the jury a deposition taken by its adversary. The court, however, in that case said: “Of course, where depositions are taken pursuant to any agreement or - understanding, of which the court will take notice, that they are to he read at the trial, they become the property of both parties, so that either party may read them, if , taken for their joint benefit, or compel his adversary to do so, if taken in his behalf.” The record in this case discloses the fact that the deposition of this witness was taken by agreement of the parties. It therefore, under the rule laid down by this court in Sexton v. Brock, supra, became the property of both parties, and either party had the right to read it to the jury. The plaintiff, during the introduction in chief of her testimony, had a right to assume that the defendant would read the deposition which it had caused to be taken; and, after the defendant failed to do so, it was not an abuse of the court’s discretion to allow the plaintiff to read the deposition after the defendant had concluded the introduction of testimony. No prejudicial error is found in the record, and the judgment is affirmed.