Western Union Telegraph Co. v. Shofner

McCulloch, J. This is an action instituted by Mrs. T. W. Shofner to recover damages resulting from alleged negligent failing of the telegraph company to properly transmit a telegram informing the plaintiff of the critical illness and impending death of her mother. Mental anguish is alleged to' have been endured by her on account of being denied the privilege of attending her mother’s funeral. The plaintiff resided at Corinth, Arkansas, a village in Howard County, about seven miles from Nashville. Corinth is off the railroad, and has no telegraph or telephone connections; Nashville being the nearest point of communication. Her mother was at Rule, Texas, and her brother, C. W. Bacon, filed with the agent of the Western Union Telegraph Company at Rule on April 27, 1907, the following message and paid the tolls thereon: “Corinth, Ark. via Nashville, Ark. Care Will Rountree. “Mother can live but a few hours. [Signed] “C. W. Bacon.” The message was transmitted over the wires of the Western Union Telegraph Company from Rule, Texas, to Hope, Arkansas, thence to Nashville over the wires of the Arkansas & Louisiana Railway Company, the latter company being engaged .in operating a telegraph line for public service between the two last named points. 'Before the message was delivered to the plaintiff or to Will Rountree, the words “Care Will Rountree” were omitted therefrom, and the alleged negligence upon which, the action is based consists in this omission. The testimony, though conflicting, tends to establish the fact that the message contained the words when it was filed with the Western Union for transmission, and the undisputed evidence shows it was not contained in the message delivered by that company to the Arkansas & Louisiana Railway Company. So it -may be treated as established by the verdict that the words in question were negligently omitted from the message by the servants of the Western Union. The action was instituted and progressed to trial against both companies, but after the testimony was all in the court gave a peremptory instruction to the jury to return a verdict in favor of the railway company. Will Rountree, the person originally named in the message, resided at Nashville, and was closely related .by marriage to Bacon, the sender of the message. The message reached Nashville at 5:3o p. m. on April 27th, but as it contained no directions concerning delivery and the operator at that place had no information concerning the means of delivering it through Will Rountree, he resorted to the only method at his command in mailing it to Mrs. Shofner at Corinth, and as there was no mail until two days later, on Monday, April 29th, the message did not reach her until that day which was too late • for her to attend the funeral of her mother, who died on Sunday, April 28th, at Rule, and was buried on Tuesday, April 30th, at Abilene, Texas. The evidence tends to show that if the omitted words had remained in the message it would have been delivered to Rountree Saturday evening, that he would have sent it out to plaintiff the same evening, and that the latter could and would have attended the funeral of her mother. The evidence shows that if she had received the message in time she could have left Nashville at 8:30 a. M. on Sunday, April 28th, and by ordinary railroad travel reached Abilene at 4:27 p. m. on April 29th, which would have been seventeen hours before the funeral. The jury returned a verdict in favor of.the plaintiff against the Western Union Telegraph Company, assessing the damages at $500, and said defendant appealed. Misjoinder of the two defendants in one action is assigned as error, the court having overruled a motion to strike out the name of one of the defendants on the ground that the complaint did not state a case of joint liability. This motion should have been sustained, but as separate actions against the two defendants could have been consolidated and tried together, pursuant to the statute (Act May 11, 1905) authorizing the consolidation of “causes of action of like nature or relative to the same question, no prejudice resulted from the ruling. Mahoney v. Roberts, 86 Ark. 130. It is earnestly insisted that plaintiff has failed to make out a case for damages because it is too uncertain whether or not Rountree would have promptly sent the message out to plaintiff Í at Corinth if it had been delivered to him in time, or whether she would have gone to her mother’s funeral if she had received f ' the message in time, or whether the train ran on schedule time between Nashville, Arkansas, and Abilene, Texas, on the .oc- ; casion named. The jury had before them the positive assertions of plaintiff and Rountree that the message would have ¡been delivered in time, and that plaintiff would have attended her mother’s funeral but for the negligence of the defendant. There is nothing in the circumstances of the case to contradict them, and the jury were warranted in finding that the statements I were true. Proof that, according to the train schedules, plain-I tiff could have left Nashville at 8:3o Sunday morning and reached U Abilene at 4 ¡27 Monday ■ afternoon made out a prima facie case ]J sufficient to warrant a finding by the jury that she could have I reached there in time for the funeral. It was not a question of \¡ presumption 'but one of proof, and the court properly refused to E give .any instruction as to a presumption either way about trains f running on schedule time. Of course, there might have been washouts or wrecks which hindered the running of trains, so that plaintiff could not have reached Abilene until after the funeral ; but those are unusual things which need not be negatived in the evidence. Plaintiff might, in driving from Corinth to Nashville, have encountered a swollen watercourse which prevented passage, or her horse might have-run away and crippled her so that she could not travel, but those were contingencies more or less remote which it was not necessary to negative. It is also contended that as the telegram did not mention the place of burial the delay in delivery could not have prevented plaintiff from going to Abilene, and that defendant is not liable for the alleged mental anguish caused by the negligent omission of the words from the message. Mrs. Shofner testified that her mother lived at Abilene, and she knew that the burial would be at that place, and she would have gone there, notwithstanding the fact that her mother was sick at Rule. The message on its face related to sickness and death, and was sufficient to charge the telegraph company with notice of damages which might result from negligence in handling it. . ' There are other assignments of error which are not deemed of sufficient importance to discuss. The case was fairly tried, and the evidence sustains -the verdict. Affirmed.