{
  "id": 1537511,
  "name": "Western Union Telegraph Company v. Cowardin",
  "name_abbreviation": "Western Union Telegraph Co. v. Cowardin",
  "decision_date": "1914-05-18",
  "docket_number": "",
  "first_page": "160",
  "last_page": "169",
  "citations": [
    {
      "type": "official",
      "cite": "113 Ark. 160"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "91 Ark. 602",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1511756
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/91/0602-01"
      ]
    },
    {
      "cite": "93 Ark. 472",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1546889
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/93/0472-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 19964,
    "ocr_confidence": 0.472,
    "pagerank": {
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    "simhash": "1:a4ec0883230c8d08",
    "word_count": 3494
  },
  "last_updated": "2023-07-14T15:15:31.349152+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Western Union Telegraph Company v. Cowardin."
    ],
    "opinions": [
      {
        "text": "Wood, J.,\n(after stating the facts). 1. The court, at the request of appellant, granted prayers for instructions which told the jury that if the earlier receipt of appellee \u2019s request to embalm and hold the body would not have prevented the funeral from taking place when it did, and if the failure to embalm and hold the body was the result of Williams\u2019s misunderstanding of appellee\u2019s wish, expressed in her telegram, the jury should find for the appellant.\nAppellant now contends that the evidence shows conclusively that the failure to embalm the body was not by reason of the late receipt of the message, but because Williams, the superintendent of the Orphans\u2019 Home, did not understand that it was appellee\u2019s desire\u2019to take the body back for burial; that if Williams had known her desire in this respect, the body would have been embalmed notwithstanding the delayed telegram. The appellant, having requested the lower court to submit this as a jury question, is not in an attitude to complain that the verdict of the jury was erroneous on this issue. Berman v. Shelby, 93 Ark. 472. Moreover, we are of the opinion that it was proper to submit the issue to the jury. .\nThere was testimony tending to show that if the message had been received on the 30th, the day the child died, the body would have been embalmed and held in compliance with the request of the appellee. There was also testimony which warranted the jury in finding that the telegram was received twenty-two hours after the child died; that the child died with pellagra, an infectious disease; that the funeral cortege was ready to move when the message was received; that the superintendent, the president .of the board of control, and those in charge of the funeral arrangements, including the undertaker, thought that it was best to bury the body at that time as quickly as possible; that it was not safe to the other children in the home to have the casket opened up .and the body embalmed. The undertaker does state, in a .second deposition, that if he had known that it was appellee\u2019s desire to have the body embalmed and removed, he would have removed the same to his parlors and embalmed it, even at that belated hour, if the telegram had been addressed to him. But the telegram was not addressed to him, and he could not have obtained possession of the body for embalming purposes without the consent of the authorities having control over the Home.\nIt-was a question for the jury, under the evidence, as to whether the failure to embalm and hold the body was caused by the delay in delivering the message, or by a failure on the part of Williams to comprehend the meaning of appellee\u2019s telegram.\n2. The court, .at the instance of the appellee, submitted to the jury to find whether or not appellant was negligent in the handling of the message from Williams to, appellee, and whether or not appellant was negligent in handling the message in reply from appellee to Williams. The appellant complains that these instructions are without evidence to warrant them. The learned counsel for appellant assumes that there was no negligence on the part of appellant in transmitting the message .as \u00e1 day letter instead of a \u201cstraight message,\u201d and contends that the uncontroverted evidence shows that, being sent as a day letter, there was no negligence in handling the same. But we are of the opinion that it was a question for the jury, under the evidence, as to whether or not the appellant was negligent, in the first place, in sending the message as a day letter instead of a regular message.\nThe sender of the message testified that he \u2019phoned the message to appellant\u2019s agent at Monticello, and the agent in charge of appellant\u2019s telegraph office at Monticello testified that he would have accepted the message from Williams by \u2019phone to be sent to appellee. The difference between the cost of the day letter and a straight message was sixteen cents. He never knew a death message sent as a day letter to save sixteen cents. A death message is only considered as a preferred message when on the prescribed form and sent as such. The 12:30 on the message was in his handwriting. He did not know when he put it there. The habit was to put the time of receiving the message on it. A straight message was given precedence over a day letter. The regular agent stated that he first saw the message about 1:30. The clerk who received the message, witness supposed, placed the day letter blank on it. The witness did not see the boy who brought it. Witness did not think that the handwriting on the message was that of Mr. Williams.\nWitness Owens testified that he was clerk of the Iron Mountain Railway Company at Monticello, Arkansas, and on July 30,1912, he received a message, in the absence of appellant\u2019s agent, addressed to Mrs. Pearl Cowardin, Bentonville, Arkansas. He wrote the.words, \u201cDay letter \u2014 23\u2014paid.\u201d He received it from some boy from the Baptist Orphans\u2019 Home. The boy who brought it paid the tariff for a day letter on the message. Witness asked \u2019 the boy if he wanted it sent as a straight message or a day letter, and the boy told witness to send it as a day letter; so witness accepted it as a day letter and put it on .the file of the operator where he would get it when he came in. Witness did not explain to the boy the difference between a straight message and a day letter, supposing that the boy had instructions from Williams how to send it. Witness asked him how he wanted it sent, and he answered like he knew. Witness did not put the time it was received on it. He pasted the day letter blank on the back of the message. The paper on which the message was written was headed, \u201cMonticello, Baptist Orphans\u2019 Home, Monticello, Arkansas, July 30,1912.\u201d The witness was in the habit of receiving messages in the absence of the operator- and collecting for them. He knew Mr. Williams\u2019s handwriting; thought this was his handwriting. He had never seen any of his handwriting except his signature.\nIt appears that the testimony of Williams tended to show that the message was transmitted over the \u2019phone to appellant\u2019s agent to be sent to the appellee, without directions as to the form it should take in sending. The message, on its face, showed that it was a death message. Witness was shown Williams\u2019s signature to the depositions and testified that the signature upon the message was not similar to the signature on the deposition, but that the signature on the message looked like Williams\u2019s signature. He did not know whether the body of the telegram was in Williams\u2019s handwriting or not, as he had never seen any of his handwriting except his signature. When a message is received on a plain piece of paper, they usually attach it to the form it is to be sent on, and witness did so in this ease.\nThere is an irreconcilable conflict in the evidence as to whether the message was \u2019phoned by Williams to the operator at Montieello, or whether or not Williams sent the same to appellant\u2019s operator at Montieello by a boy. If the message was given over the \u2019phone it appears then as a straight message; and, on the contrary, if it was delivered through Williams\u2019s agent \u2014 a boy \u2014 then the testimony is to the effect that the boy directed the agent to send it as a day letter. If the agent received it over the \u2019phone, he assumed to send it as a day letter without first obtaining the authority of the sender, and was therefore negligent in causing an urgent death message to be classified as a day letter, and in thus having the same delayed in transmission and delivery.\nThe testimony of the witnesses on behalf of appellant, tending to show that the message was received through the boy as the agent of Williams, is more or less conflicting, in itself, and is in direct conflict with the testimony of appellee. Tt was therefore a question for the jury as to whether or not the appellant was negligent in the transmission and delivery of the message from Williams to the appellee.\nEven though the message may have been directed by the sender to be sent as a day letter, we are of the opinion that it was still a question for the jury to determine as to whether the appellant was negligent in its transmission and delivery. It could serve no useful purpose to discuss in detail the facts which warranted the submission of that question to the jury.\nIt was a question also for the jury as to whether or not appellant was negligent in handling the message from appellee to Williams. The operator at the office where this message was received was requested by the appellee to forward it immediately, and he promised her that he would do so, but he did not explain to her that the office at the place of delivery was not a night office, and that the message, therefore, could not be delivered on account of office hours until the next morning, causing a delay of nine hours and forty-five minutes in the delivery of the message. Had he informed her she would have used the long-distance telephone.\nThe case is ruled on this point by the case of Western Union Telegraph Co. v. Harris, 91 Ark. 602. In that case we held (quoting syllabus): \u201cWhere a telegraph company\u2019s transmitting agent knows, or, under the circumstances should know, that on account of the receiving office being closed there will be delay in delivering an urgent message which is intended for immediate delivery, it is incumbent on him to so inform the sender; and if he fails to do so, the company is liable for damages resulting from such neglect.\u201d\n3. The court granted,. among others, appellee\u2019s fourth prayer for instruction, as follows: \u201cIf you find from the evidence that the message from Mr. Williams to Mrs. Cowardin was sent on plain paper to the office of defendant with sufficient money to pay the regular raite, and the agent of defendant, without explaining to the boy bringing the message the difference in service or cost between the 'day letters and regular messages, asked which form to send it on, and was told by the boy to send it as a day letter, and on that direction so sent it, and if you find such direction was without the knowledge of Williams, then the defendant can not avail itself of the deferred service due to the form of the message as a defense for not properly transmitting it.\u201d\nThis prayer was erroneous and the granting of it was necessarily prejudicial to the rights of appellant. It assumes that it was necessary for appellant\u2019s agent, before receiving ithe same to be sent, as a' day letter, to explain to the boy bringing the message the difference in service and cost between day letters and regular messages.\nIf the boy was entrusted by Williams with the mission of taking the message to appellant\u2019s operator and of directing him how to send the same, then it was not appellant\u2019s duty to give to Williams\u2019s agent any explanation as to the difference between day letters and regular messages. \u25a0 There was nothing in the testimony except the boy\u2019s age to warrant the conclusion that he was ignorant of the difference. If the boy was Williams\u2019s agent he was under Williams\u2019s directions, and Williams himself, for aught the evidence shows to the contrary, may have already explained to him the difference in the messages and the particular form under which he desired the message sent.\nIf, as contended by appellant\u2019s counsel, and as the evidence tends to show, Williams entrusted the boy with the duty of sending the message and gave him authority to send it as a day letter instead of a regular message, then there was no duty on appellant to explain to Williams\u2019s agent the difference between straight messages and day letters. Williams could select his own method for transmitting the message to appellant\u2019s operator, and it was his province to select .the form that he wished the message to take. It was not incumbent on appellant to give Williams\u2019s agent, if the boy was his agent, any explanation of the difference between regular messages and day letters.\nIt was a question for the jury, taking into consideration the boy\u2019s age, and the other circumstances, assuming that Williams sent the message by the boy to the depot, to determine whether or not the boy was acting in the capacity of agent of Williams for the purpose of sending the message and directing the particular form it should take, or whether or not he was a mere messenger, without any discretion in the matter, and simply serving as a vehicle for the transmission of the message from Williams to the appellant\u2019s operator at the depot.\nThe vice of the instruction is that it assumes as a fact that the boy was not Williams\u2019s agent, vested with the authority to speak for Williams, and having knowledge of the difference between day letters and straight messages and discretion to select between the two. It assumes as a matter of law that it was necessary for appellant to explain the difference between a regular message and a day letter to the boy regardless of the evidence tending to show that the boy was about fourteen years of age, and that he appeared to know the difference. The instruction assumes that the boy was not Williams\u2019s agent to send the message, and also assumes that in giving directions that the message should be sent as a day letter, the boy was acting without authority from, and without the knowledge of, Williams.\nOther objections are urged, but we find no reversible error in the rulings of the court except as above indicated. For the error in granting appellee\u2019s prayer for instruction No. 4, the judgment must be reversed and the cause remanded for a new trial.",
        "type": "majority",
        "author": "Wood, J.,"
      }
    ],
    "attorneys": [
      "II. G. Mechem, for appellant.",
      "Hal L. Norwood and Hill, Brizzolara S Fitshugh, for appellee."
    ],
    "corrections": "",
    "head_matter": "Western Union Telegraph Company v. Cowardin.\nOpinion delivered May 18, 1914.\n1'. Appeal and error \u2014 invited error \u2014 instructions.\u2014Where the appellant requested the court to submit a certain question as an issue to the jury, he can not complain that the verdict of the jury was erroneous on that issue. (Page 163.)\n2. Telegraph companies \u2014 delay in delivering messages \u2014 damages\u2014 question for jury. \u2014 In an action for damages caused by the failure of the addressee of a telegram to hold the dead body of a child until the arrival of the sender, held it was a question for the jury to determine whether the failure to hold the body was due to the failure of defendant to deliver the message promptly, or the failure of the addressee to understand the message. (Page 164.)\n3. ' Telegraph companies \u2014 death message \u2014 delay\u2014question for jury. Where a death message was sent as a \u201cday letter\u201d and not as a \u201cregular message,\u201d and the sender alleged damages by reason of a delay in the delivery thereof, held, it was a question for the jury under the evidence as ito whether the appellant iwas negligent in sending the message \u00e1s a \u201cday letter\u201d instead of as a \u201cregular message\u201d (Page 168.)\n4. Telegraph companies \u2014 death message \u2014 \u201cday letter\u201d \u2014 question for jury. \u2014 Where there is a conflict in the testimony as to whether defendant was instructed to send a death message as a \u201cday letter\u201d or \u201cregular message,\u201d the question should be submitted to the jury. (Pago 168.)\n5. Telegraph companies \u2014 delay\u2014negligence.\u2014Where a telegraph company\u2019s transmitting agent knows, or under the circumstances should know, that on account of the receiving office being closed there will be delay in delivering an urgent message which is intended for immediate delivery, it is incumbent on him to so inform the sender; and, if he fails to do so, the company is liable for damages resulting from such neglect. (Page 168.)\n\u2022 6. Telegraph companies \u2014 kind of message \u2014 day letter \u2014 agent of sender.- \u2014 The sender of a death message sent the same to the telegraph office for transmission. Held, it was error to-instruct the jury that the bearer of the message, a hoy of fourteen years, was not the sender\u2019s agent, and that when the hoy said the message was to go as a \u201cday letter,\u201d that it was the duty of the agent to explain to the boy the difference between a \u201cday letter\u201d and a \u201cregular message.\u201d (Page 169.)\nAppeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;\nreversed.\nSTATEMENT BY THE COURT.\nIn April, 1909, appellee and her husband adopted a baby boy, eleven months old. They named him Paul Cowardin. Paul died in the Orphan\u2019s Home at Monticello, Arkansas, July 30, 1909, at 10 a. m. The superintendent of. the Home transmitted a message to appellant\u2019s operator -at Monticello, addressed to appellee, at Bentonville, Arkansas. The message read as follows: \u201cPaul Cowardin died this morning at 10 o\u2019clock. Will be buried at 9. With heart full of sympathy. Signed, J. M. Williams.\u201d The message was delivered to appellant\u2019s operator at Monticello at about 1 or 1:30 p. m. Appellant\u2019s agent transmitted the message to the relay office at Little Bock. All points north of Monticello were relayed to Little Bock. The records of appellant\u2019s office at Little Bock showed that the message was received on that day at 2 o\u2019clock and sent to St. Louis -at 3:30, that being the proper relay office for messages to Bentonville, Arkansas.\nOn account of the Bentonville loop wire being broken, appellant routed the Bentonville business to Fort Smith. At that time the peach harvest was on and the business, for that reason, was heavy. At 5 p. m. that day the day letters were four hours and fifteen minutes behind the regular full\u2019rate messages, which took precedence over day\u2019letters, and for that reason that message was delayed to await its regular turn, the same being a day letter. The message was pasted on a day letter blank. The day letter blank contained on its face the following: \u201cSend the following day letter subject to the terms on the back hereof which are hereby agreed to,\u201d and on the back was endorsed: \u201cDay letters may be forwarded as a deferred service and the transmission of such day letters is, in all respects, subordinate to the priority of transmission and delivery of regular day messages.\u201d\nThe operator at St. Louis began handling the message at 8:31 p. m. At 9:51 the operator sent it to the operator at Fayetteville, who said he would \u2019phone it to Bentonville. At 10 o\u2019clock p. m,, July 30,1912, the appellee received the message. She answered at 10:30 that night,\u2019 as follows: \u201cMr. Williams, Monticello Baptist Orphanage. Have body embalmed at my expense and hold, if possible, until I come. Signed, Mrs. Paul Cowardin.\u201d At 8:15 on July 31, Williams received the last message, and in reply, wired the appellee as follows: \u201cTour telegram came too late. Can\u2019t hold child until you arrive. \u2019 \u2019\nThe appellee started from Bentonville to Monticello on July 31, and arrived at Monticello August 1. When she reached Monticello, the baby had been buried a day and a half. She went for the purpose of carrying the baby back with her and burying him beside his father, at Hartford. The child died with pellagra and the officials would not permit her to disinter the remains and move them at that time.\nThe above are substantially the facts upon which appellee predicated her complaint against the appellant, in which she alleged the latter had neglected to promptly transmit and deliver the messages, and that by reason of such negligence she had been damaged in the sum of $1,200.\nThe appellant set up that the telegrams were both received and sent as day letters, and denied specifically the allegations of negligence, and denied that the prompt transmission and delivery of either of the telegrams would have caused the body to be embalmed and held until her arrival, and denied that the failure to embalm and hold the body was caused by any delay in the transmission of the messages. Denied that any negligence on appellant\u2019s part caused appellee any damage.\nThe cause was sent to the jury upon instructions which will be noticed in the opinion. There was a verdict and judgment in favor of the appellee in the sum of $800, and the cause is here on appeal. Other facts stated in opinion.\nII. G. Mechem, for appellant.\nHal L. Norwood and Hill, Brizzolara S Fitshugh, for appellee."
  },
  "file_name": "0160-01",
  "first_page_order": 180,
  "last_page_order": 189
}