{ "id": 1337077, "name": "Western Union Telegraph Company v. Littlefield", "name_abbreviation": "Western Union Telegraph Co. v. Littlefield", "decision_date": "1914-01-12", "docket_number": "", "first_page": "602", "last_page": "606", "citations": [ { "type": "official", "cite": "110 Ark. 602" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "156 S. W. 836", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "108 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342257 ], "opinion_index": -1, "case_paths": [ "/ark/108/0092-01" ] }, { "cite": "156 S. W. 836", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "108 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342257 ], "opinion_index": 0, "case_paths": [ "/ark/108/0092-01" ] } ], "analysis": { "cardinality": 408, "char_count": 8735, "ocr_confidence": 0.53, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31768917801771457 }, "sha256": "d0aacfb84c3764678f312846d2aae7c040ba825cae7bcc2615868b2437903714", "simhash": "1:340a9cae0539e63d", "word_count": 1514 }, "last_updated": "2023-07-14T14:48:34.663007+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Western Union Telegraph Company v. Littlefield." ], "opinions": [ { "text": "Wood, J.,\n(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\u2019clock p. m. It was received by appellant at Palestine not before 5:50 o \u2019clock\u2014at about 6 o \u2019clock p. m.\u2014and 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\u2019s office hours, for the agent who receiv\u00e9d 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.\nIf it be conceded that it was the custom of appellant to deliver important messages over the \u2019phone 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 \u2019phone 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.\nWhile 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\u2019s 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.\nSo, 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.\n2. 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 \u00f3f the prayer was not prejudicial error.\nFor 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.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "Bose, Hemingioay, Cantrell & Loughborough, for appellant.", "0. N. Killough, for appellee." ], "corrections": "", "head_matter": "Western Union Telegraph Company v. Littlefield.\nOpinion delivered January 12, 1914.\n1. Telegraph companies \u2014 rules \u2014 failure to deliver message promptly.\u2014A telegraph company is not liable for negligence for receiving a telegraph message, knowing that it could not be delivered that night, when the message was delivered to the defendant company about 6 p. m., and the agent informed the sender that he thought it would reach its destination too late to be delivered that night. (Page 606.)\n2. Telegraph companies\u2014duty to deliver message by telephone.\u2014 When a telegraph message was received at night after the hours of free delivery, and it is the custom of defendant to deliver messages over the telephone at night, defendant is not guilty of negligence, where it used reasonable efforts to deliver the message by telephone, and was informed by the central office of the telephone company, that the addressee of the message, had no telephone. (Page 606.)\n3. Evidence\u2014burden of proof.\u2014-An instruction that \u201cthe burden is on defendant to establish its defense by a preponderance of the evidence, unless such defense sufficiently appears from the evidence of the plaintiff,\u201d is not prejudicial when the court also instructed the jury that \u201cthe plaintiff is required to prove or make out a case by a preponderance or greater weight of evidence.\u201d (Page 606.)\nAppeal from Cross Circuit Court, First Division; J. F. Gautney, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nThis is a suit to recover damages for mental anguish alleged to have been suffered by appellee on account of the alleged negligent failure of appellant to promptly deliver to her the following telegram:\n\u201cTo Mrs. Annie Littlefield, Wynne, Ark.\n\u2018 \u2018 Papa no better; come in a. m.\n\u201cTom Jones.\u201d\nAppellee resided at Wynne, Arkansas, and her father, J. Jones, resided at Palestine, Arkansas. Her father being very sick, on the 13th of February, 1912, her brother, Edwin J ones, at 6 o \u2019clock on that day, delivered the above telegram to the appellant at Palestine. Jones testified that he delivered the message about 6 o \u2019clock one evening. He says: \u201cIt was about 6 o\u2019clock some time.\u201d He was asked the following question: \u201cIf the plaintiff alleges that it was 5:50 they are wrong, are they?\u201d and answered, \u201cI believe they are.\u201d He was asked, \u201cYou don\u2019t know what time it was delivered?\u201d and answered, \u201cNo, sir; but it was right at 6 o\u2019clock.\u201d Witness further testified that the operator told him the message ought to be delivered that night, but he didn\u2019t know whether they would deliver it or not.\nThe proof shows that the office hours of appellant at Wynne were from 8 o\u2019clock in the forenoon to 6 o\u2019clock in the afternoon, but that messages were generally delivered by telephone to known parties who had telephones. Witness says it was the custom to do this. The messenger boy was only on duty from 8 in the morning to 6 o\u2019clock in the evening. There was no direct communication over appellant\u2019s wires between Palestine and Wynne, and the message had to go by way of Memphis. Memphis is a large relay office, and messages there are handled according to their turns. This message would have had the right-of-way over ordinary messages. At the time the message was filed at Palestine, there was no message ahead of it for transmission. It would have taken twenty minutes to send the message. The line direct from Forrest City to Wynne was used exclusively for railroad purposes.\nAppellee testified that on the morning of the 14th, she received a message about 9 o\u2019clock. But on cross examination, she stated that she had signed a receipt for the message showing that it had been deliverd to her at 8 o\u2019clock that morning, and this receipt was introduced in evidence. She further testified that she was telephoned about 9 o\u2019clock that morning that Ben (the messenger boy) was on his way down with a message for her, and that she would have to go away on the 9 o \u2019clock train; that when Ben got to her house with the message, she Avas away from home, and could not then get any train out until 11:40. Appellee further testified that if she bad received the message in time to have taken the 7 o\u2019clock train ont of Wynne in the morning, she could have reached her father\u2019s bedside before he became unconscious. He became unconscious at 2 o\u2019clock p. m., and she didn\u2019t arrive at Palestine until 5 o\u2019clock p. m. She suffered mental anguish because her father, while conscious, had called for her, and when she reached his bedside, he could not recognize her.\nThe operator at Wynne testified that when the message came, at about 2:30 a. m., he examined the telephone directory, and could not find the name of plaintiff in it; that he then called up the central telephone office there in Wynne, and was informed by the girl in charge that her brother had no telephone; that he' then left the message for the messenger boy the next morning.\nThere was testimony on behalf of the appellee tending to show that appellee had a telephone in her house when this message was received at Wynne.\nThe court, among others, granted the following prayers for instructions:\n\u201c2. The plaintiff is required to prove or make out a case by a preponderance or greater weight of evidence, and unless you find she has done so, you will find for the defendant. \u2019 \u2019\n\u201c3. The burden is on the defendant to establish its defense by a preponderance of the evidence, unless such defense sufficiently appears from the evidence of the plaintiff. \u2019 \u2019\nThere was a judgment in favor of the appellee in the sum of $500.\nBose, Hemingioay, Cantrell & Loughborough, for appellant.\n1. Under the evidence, this case is controlled by the case of Western Union Telegraph Company v. Turley, 108 Ark. 92.\n2. Instruction 3 is erroneous in that it, in effect, relieves the plaintiff of the burden of proof.\n0. N. Killough, for appellee.\n1. This case is not controlled by the Turley case. 156 S. W. 836. There is no proof to show that the message, received at Palestine before 6 o\u2019clock, could not have been delivered to appellee at Wynne before 6 o\u2019clock on the same day.\n2. Read in connection with instruction 2, as it should be, instruction 3 is not bad." }, "file_name": "0602-01", "first_page_order": 620, "last_page_order": 624 }