Western Union Telegraph Co. v. Littlefield

Wood, J., (after stating the facts). 1. The case does not differ in essential particulars from the case of Western Union Telegraph Co. v. Turley, et al., 108 Ark. 92, 156 S. W. 836. The uncontroverted evidence shows that the message was not delivered to appellant at Palestine in time to have been transmitted to Wynne before 6 o’clock p. m. It was received by appellant at Palestine not before 5:50 o ’clock—at about 6 o ’clock p. m.—and it would have taken about twenty mintues for its transmission. Appellant was not negligent in receiving the message, knowing that it could not be transmitted in time to reach Wynne within appellant’s office hours, for the agent who receivéd the message for transmission informed the sender that while the message ought to be delivered that night, he did not know whether they would deliver it or not. If it be conceded that it was the custom of appellant to deliver important messages over the ’phone to known parties at Wynne after office hours, the uncontroverted evidence shows that appellant duly observed that custom in this instance, for the operator who received the message at Wynne endeavored to ’phone this message to appellee just after he had received it, but could not succeed in doing so for the reason that the name of the appellee did not appear on the telephone directory, and the party in charge of the central telephone office informed the operator that appellee had no telephone. While appellee testified that she had a telephone in her house at that time, she does not show that her name appeared in the telephone directory, and appellant’s agent exhausted all sources of information at his commaud in order to ascertain whether appellee had a telephone, and the uncontradicted evidence shows that he was not negligent in his endeavors to communicate the message to appellee over the telephone. So, if the rule of appellant establishing) office hours at Wynne was abrogated by a custom to deliver messages over the telephone after these hours, still, under the undisputed evidence, there was no negligence on the part of the appellant, for it exercised ordinary care to comply with that custom. 2. Appellant complains of instruction No. 3, but when this is read in connection with No. 2, as it must be, the instruction was not misleading, and, although it may have been more happily worded, the granting óf the prayer was not prejudicial error. For the error in refusing to set aside the verdict on account of the insufficiency of the evidence, the judgment is reversed and the cause will be remanded for a new trial.