Western Union Telegraph Co. v. Westbrook

Smith, J., (after stating the facts). We have set out the evidence in extenso because of the view we take of it, and for the same reason we regard it as unnecessary to set out or discuss the instructions in this opinion. Appellee complains of the alleged negligent failure to deliver the messages, one addressed to her individually, and the. other to her and John Westbrook jointly, the one advising her of her husband’s illness, the other of his death. The first message she claims not to have been received until the morning* of the 6th, and the other one not until the afternoon of that day. But a joint message may be delivered to either of the addresses, and a delivery to John Westbrook was a delivery to appellee of the message addressed to her and to him. It is true John Westbrook did at first testify that the joint messages were not delivered until the afternoon of the 6th, and he contradicts the operator’s statement that the delivery occurred in the telegraph office; but although he says he received the messages through the postoffice, he does admit on cross examination, after his recollection had been refreshed, that the messages were delivered to him on the afternoon of the 5th, and within a short time after their receipt for transmission at Saltillo. This brother lived a mile and a half from the town of Beebe, which was of course beyond the free delivery limits, and although the messages were put in the postoffice this proved to be a very expeditious method of delivering them to him. Nor does the proof show any negligence in failing to deliver the first telegram. Appellee resided beyond the free delivery limits, and there is nothing in the record to indicate' that a delivery of the message could have been made within these limits. The evidence is undisputed that the weather was very inclement, and the colored porter, who knew appellee, testified that he had no hope of finding her in town on such a day, but that he looked around the town to find some one by whom he could send the message to the country and failing to find any one he deposited the telegram in the postoffice, after advising the postmistress of its presence there and of its contents, and after requesting that she deliver it as soon as possible. Nor do we think there was any negligent failure to observe the rule 51 offered in evidence. This rule was substantially complied with. Immediately upon learning that appellee lived in the country, the operator at Beebe advised the operator at Saltillo of the conditions and of what he had done, and the operator at Saltillo immediately called Everett, the sender of the message, over the telephone, and Everett said it was satisfactory to him for the messages to be mailed in the postoffice. Under these circumstances appellant would have had no authority to incur any expense in the delivery of this message, and we think as a matter of law that appellant was guilty of no breach of duty in failing to deliver this message. King v. Western Union Tel. Co., 89 Ark. 402. The court below should, therefore, have directed a verdict in appellant’s favor, and for its failure so to do the judgment must be reversed and the cause will now be dismissed.