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turbed on appeal unless against the preponderance of the evidence.

It follows that the decree must be affirmed.

WESTERN UNION TELEGRAPH CO. v.

HEARN.

(Supreme Court of Arkansas. Nov. 17, 1913.) 1. TELEGRAPHS AND TELEPHONES (§ 73*)— TRANSMISSION OF MESSAGES - DELAY — ASSESSMENT OF DAMAGES.

In an action for damages for delay in transmitting a death message, evidence of negligence held sufficient to go to the jury.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.*]

2. TELEGRAPHS AND TELEPHONES (§ 66*) — TRANSMISSION OF MESSAGES-DELAY.

Where a telegraph company accepted a death message on Sunday and transmitted it to within a short distance of the destination before 2 o'clock in the afternoon, and the message was not delivered until 8 o'clock the following morning, the telegraph company has the burden of explaining and excusing its unreasonable delay.

[Ed. Note.-For other cases, see Telegraphs

and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]

3. TELEGRAPHS AND TELEPHONES (§ 38*)-DELAY IN TRANSMISSION OF MESSAGE-EXCUSE. Where a telegraph company accepted a death message for transmission on Sunday, and it was not transmitted because of a defect in the line, the fact that the lineman refused to repair it on that day will not alone excuse the company; for, having accepted the message, it was bound to use reasonable diligence and is chargeable with the lineman's negligence. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*1

4. APPEAL AND Error (§ 882*)-PERSONS ENTITLED TO ALLEGE ERROR.

In an action against a telegraph company for damages for delay in the transmission of a death message, where proof of the giving of written notice within 60 days of intention to claim damages for delay was excluded on the company's objection, it cannot urge on appeal the failure to give notice as ground for reversal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*1

5. TELEGRAPHS AND TELEPHONES (§ 54*)DAMAGES FOR NEGLIGENT DELAY-CON

TRACTS LIMITING LIABILITY.

While common carriers may stipulate against contractual or common-law liabilities, it is against public policy to allow them by contract to protect themselves from liability for their own negligence, and hence a stipulation on a telegraph blank limiting damages for delay to $50 is ineffectual.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig.

$ 54.*]

6. TELEGRAPHS AND TELEPHONES (8 54*)DAMAGES FOR DELAY-STATUTE.

Under Kirby's Dig. § 7947, providing that telegraph companies shall be liable in damages for mental anguish or suffering, for negligence in transmitting or delivering messages, and that the jury may award such damages as they conclude resulted from negligence, a stipulation in

telegraph blanks limiting damages for delay to $50 is ineffectual to so limit the recovery for negligence in transmitting a death message.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. § 54.*]

Appeal from Circuit Court, Pike County; Jeff. T. Cowling, Judge.

Action by Mrs. Jennie Hearn against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. H. Fearons, of New York City, Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and W. C. Rodgers, of Nashville, for appellant. S. S. Langley and A. P. Steel, both of Murfreesboro, for appellee.

McCULLOCH, C. J. The plaintiff, Mrs. Jennie Hearn, instituted this action against the Western Union Telegraph Company to recover damages on account of alleged negligent failure of appellant to deliver a telegram apprising plaintiff of the death of her father. She alleges and attempts to prove that, if the telegram had been delivered with reasonable promptness, she could, and would, have reached the place where her father died in time to attend the funeral, and that she suffered mental anguish by reason of being deprived of that privilege. The plaintiff lived at Roseboro, Ark., a point on the railroad north of Gurdon, and her father, R. B. Alexander, lived at Whelen, Ark., a railroad point south of Gurdon. Her father died at Whelen early in the morning on Sunday, October 6, 1912, and about 10 o'clock that morning one Stone delivered to defendant's telegraph operator at that place a message directed to plaintiff in the following language: "Father died about 1 o'clock. Come at once." The customary toll was paid, and the message was accepted. If the message had been delivered at any time prior to 7 o'clock a. m. Monday, October 7th, plaintiff could have gotten a train at Roseboro, which would have carried her to Whelen in time to reach there several hours before the funeral occurred; but the telegram was not delivered until shortly after 8 o'clock on October 7th, which was too late to get a train or any other mode of conveyance to the scene of the funeral. The body could not be kept over another day, and plaintiff was thus deprived of the privilege of attending her father's funeral. She recovered damages at the trial in the sum of $250, and the amount of the verdict is not challenged as being excessive.

The operator at Whelen transmitted the message to Little Rock, and thence it was sent to Gurdon, reaching there about 2 o'clock p. m. Sunday. It was sent over the railroad wire, because of the fact that the commercial wire was not in use except during the office hours for that day, which were limited to the hours between 8

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 161 S.W.-65

[4] It is contended that the plaintiff's action must fail because she failed to allege and prove that she gave notice to the company within 60 days of her intention to claim damages. The blank upon which the message was written contained the usual

a. m. and 10 a. m. and from 4 p. m. to 61 liable. Arkansas & Louisiana Ry. Co. v. Lee, p. m. The Gurdon operator attempted to for- 79 Ark. 448, 96 S. W. 148. ward the message to Roseboro, but found the wires down, and an effort was made to have the wires repaired, but the linemen on duty at that place refused to work because it was Sunday. The operator also testified that he tried to telephone the message to Roseboro, but found that the telephone wire to Gurdon | stipulation that "the company will not be liawas also out of use. The message was sent through early Monday morning soon after the telegraph line was repaired and, as before stated, was delivered about 8 o'clock, but too late for plaintiff to catch the morning train. There is evidence to the effect that the telegraph wire between Gurdon and Roseboro went down on the evening or night of October 5th.

[1, 2] We are of the opinion that the evidence was sufficient to sustain a finding of negligence which warranted the award of damages and that the court did not err in refusing to give a peremptory instruction. There was an unreasonable delay in transmitting and delivering the message, and the burden was on the defendant to account for the delay so as to free itself of the charge of negligence. Western Union Telegraph Co. v. Chilton, 100 Ark. 296, 140 S. W. 26. The message reached Gurdon at 2 o'clock p. m. on Sunday, and appellant had from then until 7 o'clock the next morning to forward and deliver it in time for the train which plaintiff might have caught.

ble for damages or statutory penalties in any case where claim is not presented in writing within 60 days after the message is filed with the company for transmission." It is not alleged in the complaint that this provision of the contract was complied with, but the answer contains a paragraph denying that the contract in that respect was complied with. Thus, notwithstanding the omission of such an allegation in the complaint, the answer set up this failure on the part of plaintiff to comply with the contract as a defense to the action, and the issue was thus tendered. No objection was made to the sufficiency of the complaint by demurrer or otherwise. Counsel for appellant in their brief call attention to the fact that, during the progress of the trial, the plaintiff offered to introduce testimony to the effect that this clause of the contract was complied with, but upon their objection the court excluded the testimony. Appellant, by its own act in objecting to the testimony, eliminated this issue from the case, and it is too late now to raise the issue for the first time here. White v. Moffett, 158 S. W. 505. A party cannot on appeal take advantage of a defect in the proof which was brought about by a ruling of the court made at its own request.

[5, 6] Nor is there any merit in the contention that the damages must be limited to the sum of $50 by reason of the stipulation to that effect in the contract. It has long been the rule of this court that a common carrier cannot lawfully stipulate for exemption from responsibility on account of negligence of its own servants. Railway v. Lesser, 46 Ark. 236. Carriers may, for a reasonable consideration, stipulate against contractual or common-law liabilities, express or implied; but it is contrary to public policy to permit them to stipulate against responsibility for their

[3] The evidence tends to show that the line was down the evening before, and reasonable diligence might have discovered its condition even before the Sunday hours began. There was no. attempt to show that the trouble with the wires was discovered at the earliest moment and effort made to repair it. Western Union Telegraph Co. v. Bickerstaff, 100 Ark. 1, 138 S. W. 997, Ann. Cas. 1913B, 242. But be that as it may, defendant having accepted the message on Sunday, it was its duty to exercise reasonable diligence to transmit it to destination, and it does not free itself from the charge of negligence merely by showing that its linemen on duty at Gurdon refused to work. The trouble with the line might have been a trifling one which could have been easily | own acts of negligence. Railway v. Weakley, remedied by some one else. The fact that it was Sunday did not relieve defendant of exercising diligence to repair its line and deliver a message which it had received for transmission, and the fact that its linemen refused to work on that day was no excuse for failing to transmit a message which it had accepted for that purpose. It had the legal right to refuse to accept messages on Sunday, but, having done so, it was bound to exercise diligence to transmit and deliver the same. The refusal of the lineman to perform his part of the work necessary to complete the transmission of the message is chargeable to the company and renders it

50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep. 104. Besides, a statute of this state expressly declares that "telegraph companies doing business in this state shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company." Kirby's Digest, § 7947. This is a positive statutory provision which cannot be changed by contract, for the reason, as before stated, that it is contrary to public policy to

allow a public service corporation to stipulate | abouts on the ground that the witnesses did not against liability for its own negligence.

There are objections made to the rulings of the court in giving and refusing instructions, but after a careful consideration of the record we are of the opinion that all the issues were properly submitted to the jury and that there was no error. A discussion of each assignment separately is useless, as no new question is involved.

The case was properly submitted to the jury, and the evidence is found sufficient to sustain the verdict, so the judgment is affirmed.

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If the initial company does not operate a telegraph line to destination, a sender has the right to select the route beyond such company's last receiving office.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. § 55.*]

show that they were in town when the message been called to that particular objection. was received, the court's attention should have

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 194-210; Dec. Dig. § 82.*1 6. TRIAL (8 84*)-RECEPTION OF EVIDENCEGENERAL OBJECTIONS.

Ordinarily a general objection to evidence is sufficient to raise the question of its com

petency.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 211-218, 220-222; Dec. Dig. § 84.*] Smith, J., dissenting.

Appeal from Circuit Court, Howard County; Jeff. T. Cowling, Judge.

Action by Mrs. Willie Alford against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. H. Fearons, of New York City, Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and W. C. Rodgers, of Nashville, for appellant. W. P. Feazel, of Nashville, for appellee.

MCCULLOCH, C. J. This is an action for damages for mental anguish growing out of 2. TELEGRAPHS AND TELEPHONES (§ 55*)-SE- the alleged negligence of appellant in failing LECTION OF ROUTE. to deliver a telegram. The complaint alWhere, though the initial telegraph company's lines do not extend to the ultimate des-leged: That appellant was a foreign corporatination of a message, there is a continuous tion and operated a line of telegraph from telegraphic route, the sender, by selecting the Vivian, La., to Ashdown, Ark., and at the telegraph as a means of transmission, impliedly latter place connected with a line of teleselects that means over the whole route, and the telegraph company is liable for resulting damages if it transmits to final destination by telephone.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. 8 55.*]

3. TELEGRAPHS AND TELEPHONES (8 54*)CONTRACTS-LIMITATION OF LIABILITY.

A limitation of the company's liability, contained in a telegraph blank, to the sum of $50, is not binding on the sender.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. $ 54.*]

4. TELEGRAPHS AND TELEPHONES (8 66*)

FAILURE TO DELIVER-ACTIONS-ADMISSION OF EVIDEnce.

In an action for damages for mental anguish for failure to deliver an illness message, which was telephoned to M., the ultimate destination, though it could have been transmitted by telegraph, evidence that M. was then quite a cotton market, so that many farmers were in town, was admissible to corroborate evidence of the telegraph operator at M. that if the message had been received he would have found some means of getting the information to the sendee.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]

5. Trial (§ 82*)-OBJECTIONS TO EVIDENCE

SPECIFIC OBJECTIONS.

While as a rule a general objection will raise the question of the incompetency of evidence, if, in an action for failure to deliver a telegraph message, defendant desired to object to evidence that witnesses would have given all inquirers information as to the sendee's where

graph owned by the Memphis, Dallas & Gulf Railway Company from Ashdown to Mineral Springs, Ark. That at 7 a. m. September 30, 1912, appellee's brother, T. C. Clark, delivered to the appellant at Vivian, La., a telegram addressed to appellee at Mineral Springs, Ark., as follows: "Come at once, T. C. Clark." That Arness is very low. the toll for the message was paid, but appellant wholly failed and neglected to transmit and deliver it. That Arness was a brother of appellee and was at the time very low, and that he died the day following the filing of the message and was buried the next day thereafter. Damages were asked for the mental pain suffered in the sum of $1,500. In its answer the appellant denied that its line connected with a line of telegraph owned and operated by the railway company from Ashdown to Mineral Springs; and denied that it ever entered into any contract with appellee, or any one for her, to transmit and deliver the message in controversy, but only agreed to transmit it as far as its lines went towards its destination; denied that it had been guilty of any negligence in its transmission; and denied the damages. The answer alleged that by the contract with the appellee it was made the agent of the sender, without liability, to forward the message over the line of any other company that might be necessary.

The proof on the part of appellee was to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

and Mr. Crump Stewart, a farmer, both of whom lived in Mineral Springs, to the effect that they knew appellee and could have given her address if inquiry had been made of them. The jury returned a verdict in favor of appellee, assessing damages in the sum of $350, judgment was entered accordingly, and an appeal has been duly prosecuted to this court.

the following effect: That if the message had | telephone, could have reached her only been delivered promptly she could, and would through the telephone of a Dr. Holcombe, have gone to her brother, and, had the mes- who was appellee's neighbor, as appellee had sage been received at any time before the no telephone in her home; but Dr. Holcombe funeral, that the funeral would have been testified that it was his custom to call any delayed until after her arrival; but that neighbor when wanted over the telephone. the message had never been received, and Further in rebuttal, one H. O. Campbell was she was not advised of her brother's illness permitted, over appellant's objection, to tesand death until after his funeral; that there tify that, during the latter part of Septemwas a telegraph line maintained along the ber and the first part of October, Mineral Memphis, Dallas & Gulf Railroad from Ash- Springs was a good cotton market, and that down to Mineral Springs which received and much cotton was received there during that transmitted messages for the public; that time. The court also admitted the testimony the telegraph operator at Ashdown was the of Claude Johnson, a rural mail carrier, joint operator of the railway company and the appellant; and that these companies had a common office. It was admitted that appellant did not operate its lines into Mineral Springs, and the proof offered by it was to the following effect: That the message was routed through Ashdown to Hope as required by the route book, and that the operator received the message there without delay, but never transmitted it further by tele- The primary and controlling question in graph, and mailed it in one of the Western this case is whether appellant telegraph comUnion envelopes the following morning. The pany had the right to change the nature of operator at Hope testified that, immediately | the message from a telegram to a telephone after the message was received, a telephone message and undertake to deliver it from its call was put in for the telephone operator nearest office to destination by telephone, or at Mineral Springs and the information com- whether it should have continued the mesmunicated that there was a death message sage and sent it as a telegram to destinafor appellee, the addressee. The operator at tion over the line of a connecting telegraph Hope testified that inquiry was made several company. According to the above recitals, times of the telephone operator at Mineral the proof shows that there was a connecting Springs, and that the message was mailed telegraph line from Ashdown to Mineral the next day, no information having been Springs, the destination of the message, and obtained about addressee, and notified the that if it had been sent by that route it sending office that the message could not be would have been delivered to the addressee. delivered, but the sender was never apprised On the other hand, the testimony is sufficient of that fact. The telephone operator at Min- to warrant a finding that the servants of the eral Springs testified that she received the company at Hope exercised ordinary care to call on September 30th, and that she inquired deliver the message by telephone to appellee of several business men in town, and also at Mineral Springs, the point of destination, of the postmaster, but received no informa- but failed to discover her. The court retion as to Mrs. Alford's address. The blank fused to instruct the jury to the effect that, on which the message was written contained if the company exercised ordinary care to the following among other stipulations: "The deliver the message by telephone from its company is hereby made the agent of the nearest office at Hope to the destination at sender, without liability, to forward this Mineral Springs, it would not be liable. message over the lines of any other company [1] No cases are cited expressly deciding when necessary to reach its destination." In the question now presented. It seems to rebuttal, appellee offered the evidence of the be well settled, however, by the authorities telegraph operator at Mineral Springs, who that a sender of a telegraphic message, where testified what his custom was, in the dis- the initial company does not operate a line charge of his duty, upon the receipt of a tele- to the destination, has the absolute right to gram where the addressee was unknown to select the route beyond the destination of the him. And this evidence was of such a char- company receiving the message. 2 Joyce on acter as to make it a question for the jury Electric Law, § 788B; Western Union Telewhether the message would have been de- graph Co. v. McDonald, 42 Tex. Civ. App. livered had it reached the telegraph opera- 229, 95 S. W. 691. This right is recognized tor at Mineral Springs in the due course of by the clause in the contract which expresstransmission and the operator had thereafter ly stipulates that "the company is hereby discharged his duty in making inquiry for made the agent of the sender, without liathe appellee. Appellee did not live in Min- bility, to forward this message over the lines eral Springs, but lived in the country six of any other company." If the receiving carmiles from there, and the message, if sent rier of the message is, under the contract, to to her over the telephone from Mineral be treated merely as an agent of the sender Springs, or if she had been called over the over the connecting line, it necessarily follows

that the sender has the absolute right to, is liable, if the forwarding of the message by

select the route.

Now, the further inquiry is, since it is seen that the sender has the right to select the route, whether in this instance the sender had selected a continuous telegraphic route, or whether it was left with the telegraph company, at its option, to select another route or method-that by way of the telephone.

[2] It seems to us that the only reasonable view is that, where there is a continuous telegraphic route, and the sender files the message with a telegraph company, that, of itself, amounts to a selection of the continuous route, and such selection must be observed by the telegraph company, and if it adopts another route contrary to this selec tion it does so at its peril.

There is a distinct difference between a telegraph message and a telephone message, so far as the means of transmission is concerned. Southern Telephone Co. v. King, 103 Ark. 160, 146 S. W. 489, 39 L. R. A. (N. S.) 402. By the first method the identical written words of the sender are transmitted and delivered in that form; whereas, the ordinary method of communication by telephone is for the carrier to furnish the means of communication and the sender and sendee converse directly.

Mr. Gray, in his work on Communication by Telephone (page 182), gives the following as the scope of duty of a telegraph company: "A telegraph company does not, as the government does, undertake to transport and deliver the paper upon which the employer writes the intelligence that he wishes to have communicated. It undertakes to transmit, with the aid of electricity, the intelligence contained in that paper to the place of destination, and there to write it out and deliver it to the person addressed."

In a decision by the Missouri Court of Appeals (Brashears v. Western Union Telegraph Co., 45 Mo. App. 433), the court pointed out this definition by the text-writer, and added that such "is undoubtedly the usual undertaking of a telegraph company, and, in the absence of a special contract to the contrary, anything short of it would be a failure of duty to the sender. The latter has the right to expect and demand that a copy of the message be promptly delivered to the addressee in person, if he is accessible."

the route selected by the sender would have accomplished a delivery, even though the company exercised ordinary care in its effort to send the message by telephone. Western Union Telegraph Co. v. Turner, 94 Tex. 304, 60 S. W. 432.

The instructions of the court were conformable to this view of the law, and we think the case was correctly submitted to the jury. It is unnecessary to set out the instructions or discuss them at length.

[3] The contract contained a limitation of liability to the sum of $50, and that is pleaded in this case. But the question is decided adversely to appellant's contention in the recent case of Western Union Telegraph Co. v. Hearn, 161 S. W. 1025.

It is insisted that the court erred in admitting the testimony of witness Campbell, as to the cotton market at Mineral Springs at the time the message was sent; and also the testimony of witnesses Johnson and Stewart, to the effect that they could, and would, have given to all inquirers information as to the whereabouts of Mrs. Alford, the appellee.

[4] The testimony of witness Campbell is of very little probative force, but it tended to establish the fact that Mineral Springs were being patronized at that time as a cotton market, which necessarily brought many farmers to town, and this tended to corroborate the testimony of the telegraph operator at Mineral Springs in his statement that, if the message had been received, he could, and would, have found some method of getting the information to Mrs. Alford concerning the message so that it could be delivered to her.

The objection now urged to the testimony of witnesses Johnson and Stewart is that they did not show that they were in Mineral Springs on the day and at the hour when the message was sent, and for that reason their testimony was incompetent.

[5] It may be conceded that the testimony was not competent unless the witnesses were in position at the time to have been inquired of concerning the residence of Mrs. Alford; but we do not think that the objection was made in a way that called the court's attention to it. Each of the witnesses stated that he resided in Mineral Springs on the day that this message was sent; that he was acquainted with Mrs. Alford and knew where she resided; and that, if inquiry had been made of him, he would have given information as to where she lived and how she could be communicated with. They were not asked whether they were in town and on the streets that day, but we think there is a fair infer

In most instances the same result is accomplished if the message is transmitted from the sender to the sendee, and in that case no damage can result. But where both means of communication are open, the sender undoubtedly has the right to choose which method he will employ, and, as before stated, it is clear to us that the filing of a tele-ence from their testimony that they meant graphic message is a selection of that route and mode of communication.

It follows that if appellant ignored the selection thus made by the sender and undertook to send by another method and route, it

to say that they were in a position on that day to have given information if inquiry had been made of them. At any rate, we think that fairness to the plaintiff and to the court demanded that attention should have been

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