#### Western Union Telegraph Company v. Swearengen.

Opinion delivered March 28, 1910.

1. Telegraphs and telephones — negligence—who may recover. — One whose name was not mentioned in a telegraphic message and whose interest therein was not communicated to the telegraph company cannot recover damages for mental anguish caused by the failure of such company to deliver the message. (Page 337.)

2. Same — notice of claim of damages. — Where a telegram contained the usual indorsement that the company will not be liable for damages “where the claim is not presented in writing within sixty days after the message is filed with the company for transmission,” a notice of a claim of damages, signed by one person, will not inure to the benefit of another person whose claim is not mentioned. (Page 338.)

Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans, Judge;

reversed.

George H. Eearons, Rosé/Hemingway, Cantrell & Lough-borough and Mechem & Mechem, for appellant.

Appellee, pro se.

Battle, J.

On the 21st day of October, 1908, Ada Swearengen, J. T. Blackburn and George Swearengen brought this action against the Western Union Telegraph Company to recover damages for mental anguish caused by the negligent failure of the defendant to deliver a telegram sent from Magazine, Arkansas, to W. J. Blackburn, at Memphis, Tennessee, announcing the illness of J. T. Blackburn, and requesting him to “come at once if possible.”

J. T. Blackburn and W. J. Blackburn were brothers; Ada Swearengen was their sister', and George Swearengen was the minor son of Ada Swearengen, and a nephew of the Blackburns.

The message was sent on the 5th day of November, 1907, and was as follows:

> “To W. J. Blackburn,

> “No. 235 Memphis, Tenn.,

> “Care Elliott & Durke.

> “Jim is worse. Come at once if possible can.

> .“George Swearengen.”

Indorsed on the message was the following stipulation: “The company will not be liable for damages or statutory penalty in *337any case where the claim is not presented in writing within sixty days after thev message is filed with the company for transmission.”

The only conversation George Swearengen, the sender of the message, had with the agent to whom the message was delivered was, the agent asked George how Mr. Blackburn was, and he replied that he was worse.

The message was filed with the defendant on Tuesday, but was never delivered. W. J. Blackburn came on the Saturday following to his brother’s bedside, while he was living, and returned to Memphis before his death.

Among other things the defendant pleaded the claim of plaintiffs for damages was not presented in writing within the sixty days. •

The only claim in writing presented to the defendant was the following:

> “To Western Union Telegraph Company,

> “Magazine Ark.

> “We demand and claim damages for your failure to deliver the following message sent from Magazine, Ark., to Memphis, Tenn.:

> ‘ “A. Paid 40 centg.

> “‘Magazine, 11-5-07.

> “ ‘Mr. W. J. Blackburn,

> “ ‘No. 235 S. Main, Memphis, Tenn.

> “ ‘Care Elliott & Durke,

> “Jim is worse. Come at once if possible can.

> “ ‘Geo. Swearengen.’

> “The above message having been delivered to you at Magazine, Ark., on the 5th day of November, 1907, damages in the sum of $1,000 are claimed.

> “Geo. Swearengen.”

This notice was served by a constable on the 17th day of December, 1907.

The action was dismissed as to J. T. Blackburn. Ada Swearengen recovered $300.40, but George recovered nothing, and the defendant appealed.

Ada Swearengen was not mentioned in the message. There was no evidence that her interest therein was communicated to *338the defendant, or that she would suffer mental anguish if the message was not delivered, and she was not entitled to recover. Helms v. Western Union Telegraph Co., 8 L. R. A. (N. S.) 249, and notes.

Mrs. Swearengen did not present any claim for damages in writing to the defendant within sixty days after the filing of the message according to the stipulation indorsed thereon, and was not entitled to recover. Western Union Telegraph Co. v. Moxley, 80 Ark. 554. The claim of George was not sufficient to cover hers.

Judgment reversed, and action dismissed.