« ForrigeFortsett »
allow a public service corporation to stipulate | abouts on the ground that the witnesses did not against lability for its own negligence.
show that they were in town when the message There are objections made to the rulings of been called to that particular objection.
was received, the court's attention should have the court in giving and refusing instructions,
[Ed. ·Note.-For other cases, see Trial, Cent. but after a careful consideration of the rec- Dig. $S 194-210; Dec. Dig. ' 82.*] ord we are of the opinion that all the issues 6. TRIAL (8 84*)-RECEPTION OF EVIDENCEwere properly submitted to the jury and that GENERAL OBJECTIONS. there was no error. A discussion of each Ordinarily a general objection to evidence assignment separately is useless, as no new is sufficient to raise the question of its com
petency. question is involved.
[Ed. Note.-For other cases, see Trial, Cent. The case was properly submitted to the Dig. $$ 211-218, 220–222; Dec. Dig. $ 84.*] jury, and the evidence is found sufficient to
Smith, J., dissenting. sustain the verdict, so the judgment is affirmed.
Appeal from Circuit Court, Howard County; Jeff. T. Cowling, Judge.
Action by Mrs. Willie Alford against the
Western Union Telegraph Company. From WESTERN UNION TELEGRAPH CO. v.
a judgment for plaintiff, defendant appeals. ALFORD.
Affirmed. (Supreme Court of Arkansas. Dec. 8, 1913.)
Geo. H. Fearons, of New York City, Rose, 1. TELEGRAPHS AND TELEPHONES ($ 55*)-SE- Hemingway, Cantrell & Loughborough, of LECTION OF ROUTE.
If the initial company does not operate a Little Rock, and W. C. Rodgers, of Nashville, telegraph line to destination, a sender has the for appellant. W. P. Feazel, of Nashville, right to select the route beyond such company's for appellee. last receiving office.
(Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. & 23; Dec. Dig. 8 McCULLOCH, C. J. This is an action for
damages for mental anguish growing out of 2. TELEGRAPHS AND TELEPHONES (8 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, þy selecting the Vivian, La., to Ashdown, Ark., and at the telegraph as a means of transmission, impliedly latter place connected with a line of tele selects that means over the whole route, and the telegraph company is liable for resulting graph owned by the Memphis, Dallas & Gulf damages if it transmits to final destination by Railway Company from Ashdown to Mineral telephone.
Springs, Ark. That at 7 a. m. September [Ed. Note.-For other cases, see Telegraphs 30, 1912, appellee's brother, T. C. Clark, deand Telephones, Cent. Dig. § 23; Dec. Dig. 8 livered to the appellant at Vivian, La., a tele
gram addressed to appellee at Mineral 3. TELEGRAPHS AND TELEPHONES ($_54*) - Springs, Ark., as follows: “Come' at once, CONTRACTS-LIMITATION OF LIABILITY.
T. C. Clark." That A limitation of the company's liability, Arness is very low. contained in a telegraph blank, to the sum of the toll for the message was paid, but ap$50, is not binding on the sender.
pellant wholly failed and neglected to trans(Ed. Note. For other cases, see Telegraphs mit and deliver it. That Arness was and Telephones, Cent. Dig. 88 39-47; Dec. Dig. brother of appellee and was at the time very $ 54.*]
low, and that he died the day following the 4. TELEGRAPHS AND TELEPHONES ($ 66*) filing of the message and was buried the FAILURE TO DELIVER-ACTIONS-ADMISSION OF EVIDENCE.
next day thereafter. Damages were asked In an action for damages for mental an- for the mental pain suffered in the sum of guish for failure to deliver an illness message, $1,500. In its answer the appellant denied which was telephoned to M., the ultimate destipation, though it could have been transmitted that its line connected with a line of teleby telegraph, evidence that M. was then quite graph owned and operated by the railway a cotton market, so that many farmers were in company from Ashdown to Mineral Springs; town, was admissible to corroborate evidence of and denied that it ever entered into any the telegraph operator at M. that if the message had been received he would have found contract with appellee, or any one for her, some means of getting the information to the to transmit and deliver the message in consendee.
troversy, but only agreed to transmit it as (Ed. Note. For other cases, see Telegraphs far as its lines went towards its destinaand Telephones, Cent. Dig. $8 61-63; Dec. Dig. tion; denied that it had been guilty of any $ 66.*] 5. TRIAL (8 82*)—OBJECTIONS TO EVIDENCE, the damages.
negligence in its transmission; and denied SPECIFIC OBJECTIONS.
The answer alleged that by While as a rule a general objection will the contract with the appellee it was made raise the question of the incompetency of evi- the agent of the sender, without liability, to dence, if, in an action for failure to deliver a forward the message over the line of any telegraph message, defendant desired to object to evidence that witnesses would have given all other company that might be necessary. inquirers information as to the sendee's where- 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
the following effect: That if the message bad 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 wbich 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 and Mr. Crump Stewart, a farmer, both of the appellant; and that these companies had whom lived in Mineral Springs, to the effect a common office. It was admitted that ap- that they knew appellee and could have given pellant did not operate its lines into Mineral her address if inquiry had been made of Springs, and the proof offered by it was to them. The jury returned a verdict in favor the following effect: That the message was of appellee, assessing damages in the sum routed through Ashdown to Hope as re- of $350, judgment was entered accordingly, quired by the route book, and that the oper- and an appeal has been duly prosecuted to ator received the message there without de- this court. lay, 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 re tion 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 messagē 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  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.
the route selected by the sender would have Now, the further inquiry is, since it is seen accomplished a delivery, even though the that the sender has the right to select the company exercised ordinary care in its effort route, whether in this instance the sender to send the message by telephone. Western had selected a continuous telegraphic route, Union Telegraph Co. v. Turner, 94 Tex. 304, or whether it was left with the telegraph | 60 S. W. 432. company, at its option, to select another The instructions of the court were conroute or method—that by way of the teleformable to this view of the law, and we phone.
think the case was correctly submitted to  It seems to us that the only reasonable the jury. It is unnecessary to set out the view is that, where there is a continuous instructions or discuss them at length. telegraphic route, and the sender files the  The contract contained a limitation of message with a telegraph company, that, of liability to the sum of $50, and that is itself, amounts to a selection of the continu- pleaded in this case. But the question is deous route, and such selection must be ob- cided adversely to appellant's contention in served by the telegraph company, and if it the recent case of Western Union Telegraph adopts another route contrary to this selec Co. v. Hearn, 161 S. W. 1025. tion it does so at its peril.
It is insisted that the court erred in ad. There is a distinct difference between a mitting the testimony of witness Campbell, telegraph message and a telephone message, as to the cotton market at Mineral Springs 80 far as the means of transmission is con- at the time the message was sent; and also cerned. Southern Telephone Co. v. King, 103 | the testimony of witnesses Johnson and Ark. 160, 146 S. W. 489, 39 L. R. A. (N. S.) Stewart, to the effect that they could, and 402. By the first method the identical writ- would, have given to all inquirers informaten words of the sender are transmitted and tion as to the whereabouts of Mrs. Alford, delivered in that form; whereas, the ordi- the appellee. nary method of communication by telephone  The testimony of witness Campbell is is for the carrier to furnish the means of of very little probative force, but it tended communication and the sender and sendee to establish the fact that Mineral Springs converse directly.
were being patronized at that time as a cotMr. Gray, in his work on Communication ton market, which necessarily brought many by Telephone (page 182), gives the following farmers to town, and this tended to corrobas the scope of duty of a telegraph com- orate the testimony of the telegraph operator pany: “A telegraph company does not, as at Mineral Springs in his statement that, if the government does, undertake to transport the message had been received, he could, and and deliver the paper upon which the em- would, have found some method of getting ployer writes the intelligence that he wishes the information to Mrs. Alford concerning to have communicated. It undertakes to the message so that it could be delivered to transmit, with the aid of electricity, the in- her. telligence contained in that paper to the The objection now urged to the testimony place of destination, and there to write it of witnesses Johnson and Stewart is that out and deliver it to the person addressed." they did not show that they were in Mineral
In a decision by the Missouri Court of Ap- Springs on the day and at the hour when the peals (Brashears v. Western Union Telegraph message was sent, and for that reason their Co., 45 Mo. App. 433), the court pointed out testimony was incompetent. this definition by the text-writer, and added  It may be conceded that the testimony that such "is undoubtedly the usual under- was not competent unless the witnesses were taking of a telegraph company, and, in the in position at the time to have been inquired absence of a special contract to the contrary, of concerning the residence of Mrs. Alford ; anything short of it would be a failure of but we do not think that the objection was duty to the sender. The latter has the right made in a way that called the court's atto expect and demand that a copy of the mes- tention to it. Each of the witnesses stated sage be promptly delivered to the addressee that he resided in Mineral Springs on the in person, if he is accessible.”
day that this message was sent; that he was In most instances the same result is ac- acquainted with Mrs. Alford and knew where complished if the message is transmitted she resided; and that, if inquiry had been from the sender to the sendee, and in that made of him, he would have given informacase no damage can result. But where both tion as to where she lived and how she could means of communication are open, the sender be communicated with. They were not asked undoubtedly has the right to choose which whether they were in town and on the streets method he will employ, and, as before stated, that day, but we think there is a fair inferIt 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 to say that they were in a position on that and mode of communication.
day to have given information if inquiry had It follows that if appellant ignored the been made of them. At any rate, we think selection thus made by the sender and under that fairness to the plaintiff and to the court took to send by another method and route, it demanded that attention should have been
called to the fact that objection was made Replevin by Francis H. Conway against on that ground. Counsel for appellant wait- A. T. Coursey. Judgment for defendant as ed until the final question was asked whether to part of the property, and plaintiff appeals. they would have given information concern- Reversed. ing the whereabouts of Mrs. Alford if asked, and then they made a general objection with Appellant, Francis H. Conway, fled a reout specifying the grounds.
plevin suit before a justice of the peace for  We do not overlook the well-settled rule the possession of one lot of sawlogs on the that a general objection is ordinarily suffi- yard at Indian Station, Chicot county, Ark., cient to raise the question of incompetency worth $295. He filed a replevin bond and obof testimony; but the appearance of the tained an order of delivery and took possesobjection in this record as a general one sion of the logs under it. Judgment was ren. convinces us that neither the court nor coun- dered in his favor at the trial by the justice sel had in mind the fact that these witnesses of the peace, and an appeal was taken by had not been sufficiently specific in their the appellee to the circuit court, and in the statements concerning their presence at a trial there the evidence was substantially as time and place where inquiries would likely follows: have been made of them. If we were to su Appellant testified he owned 380 acres of tain this objection now and reverse the case, land in Chicot county, and that the logs reit would be upon a point apparently that was plevined came off his land; that he went not urged below.
over his land and had the county surveyor to Upon the whole, we are of the opinion that make an estimate of the timber cut and rethe case was fairly tried, and that appellee's moved therefrom, and he found that some case was fully made out so as to warrant one had cut about three times as much timthe verdict.
ber as was embraced in this suit and that all Affirmed.
of the land was practically denuded of its
timber; that he had never at any time sold SMITH, J., dissents.
any timber to any one nor authorized any one to sell his timber, and that no timber had been disposed of except for the purpose
of clearing the land; that he had never givCONWAY V. COURSEY.
en Lewis Keith a written lease for any part (Supreme Court of Arkansas. Dec. 1, 1913.) of this land, and he had never authorized 1. TRIAL ($ 252*) – INSTRUCTIONS — SUPPORT any one else to do so; that the only leases IN EVIDENCE.
which he ever made, or authorized, provided In replevin for logs, alleged to have been that the land should be cleared by deadening cut from plaintiff's land while in the possession the timber, and that no right was given to of a lessee under a clearing lease, where there was no evidence that plaintiff personally had remove or use any timber except for fence ratified the written lease by his agent put in ev- posts and to improve the place, and that no idence, or that he had any knowledge of it un- clearing was required to be done except as it til after the timber bad been cut and removed, became necessary to put the land in cultivainstructions that if his agent had leased the land and plaintiff knew of the lessee's occu- tion, and that no authority was ever given pancy and received rent, and that if the lessee to any one to sell any merchantable timber, in good faith sold the timber for clearing pur Mr. Ward testified that he was appellant's poses, plaintiff could not recover were without support in the evidence.
representative in renting and clearing the [Ed. Note. For other cases, see Trial, Cent land, but that he had never been given any Dig. 88 505, 596-612; Dec. Dig. $ 252.*] authority to authorize any use of the timber 2. Logs LOGGING ($ 3*) — CLEARING except for clearing the land and improving LEASE-RIGHTS OF PARTIES.
it, and that he had received explicit direcAn agreement for the rental and clearing | tions from appellant that no timber should of timber land does not convey title to the be sold; and witness stated that he had nevstanding timber so that the tenant may sell it, but the title thereto and the right to remove it er sold any timber nor authorized the sale remains in the owner, though if the owner does of any. He admitted, however, the execution not remove it in apt time the tenant may de- of a certain lease which was offered in evistroy such timber, by deadening it or otherwise, dence, and which reads as follows: "This as is necessary to clear the land.
(Ed. Note.--For other cases, see Logs and contract entered into this 11th day of March, Logging, Cent. Dig. $8 6-12; Dec. Dig. ; 3.*] 1908, by and between Francis H. Conway, 3. APPEAL AND ERROR ($ 1031*)–HARMLESS party of the first part, and Lewis Keith, parERROR — PRESUMPTION OF PREJUDICE — IN- ty of the second part, witnesseth: Party of
the first part agrees to rent party of the secWhere it does not clearly appear from the record that an erroneous instruction was harm- ond part the John White tract of land, conless, the judgment must be reversed.
taining eighty-five acres cleared and timber[Ed. Note. For other cases, see Appeal and ed land for the term of five years, for the Error, Cent. Dig. $$ 4038-4046; Dec. Dig. 8 sum of seventy-five 00-100 per annum, paya1031.*]
ble the 1st day of December, each year, 1908, Appeal from Circuit Court, Chicot County ; 1909, 1910, 1911, 1912, out of first cotton. J. R. Yerger, Special Judge.
Party of the first part also agrees to allow
*For other cases tee same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
party of the second part the privilege of Keith declined to receive it, but appellee declearing and cultivating all the land he can nied that he had offered to make any other during the said terms, and agrees to furnish payment to Keith. what wire and staples that may be necessary There was some other evidence which we to fence said lands. Party of the second think it unnecessary to set out. part agrees to put said land in good cultivat- The court gave various instructions and, ing condition and keep all fences in good re- among others, gave at appellee's request and pair and put up all fences on good posts and over appellant's objection instruction No. 4, on the
of said tract with no ex- which reads as follows: "You are instructed pense to party of the first part. Also agrees that if you find from the evidence that to clear at least forty acres of timbered lands W. W. Ward, acting as agent for plaintiff, in good cultivating condition during the leased to Lewis Keith the land from which times before mentioned. We this 11th day the timber in controversy, or a part thereof, of March, 1908, set our hands and seals. was cut, and plaintiff knew of the occupancy (Signed] Francis H. Conway, per W. W. of Keith under said lease and received rent Ward, Agt. [Signed] L. W. Keith. Witness: under the terms thereof, and if you further [Signed] I. M. Worthington, Jr."
find that the chief consideration for said Lewis Keith testified that he owned a tract lease was the clearing and putting in a state of land adjoining the Conway land which he of cultivation of 40 acres of said land, the had leased, and that he sold the timber on obligation to clear necessarily implied the rehis own land for $150 and sufficient lumber moval of the timber therefrom, and if you with which to build a house on the Conway further find that the said Keith in good lease with the understanding that enough faith, for the purpose of clearing and improvtimber should be cut and removed from the ing said land and complying with the terms Conway lease to furnish the necessary lum- of his lease, sold the timber off the land to be ber for building the house. Keith testified cleared to the defendant, your verdict will be that appellee paid him the $150 and immedi- for the defendant for the timber cut from the ately commenced cutting and removing tim- Keith land or its value." ber on the land leased by witness as well as The jury returned the following verdict, to on that owned by him. He further testified wit: “We, the jury, find for the defendant that he notified appellee that he had no au- for 36,000 feet of logs at $10.00 per thousand. thority to sell any timber on his lease, and (Signed] J. R. Spraggins, Foreman." Judgthat he had not done so, and that he twice ment was thereupon entered by the court ordered off the cutters and haulers off this against appellant and the sureties on his lease, and that after he had done so the sec- bond for 36,000 feet of logs if they can be ond time appellee came upon the land with a found, or for the value with interest thereon shotgun and announced his intention to cut from the date they were taken under order the timber; whereupon witness notified Mr. of delivery issued by the justice. A motion Ward, who in turn notified the appellant, and for a new trial was overruled, and an apthis suit was immediately begun. Keith fur- peal prayed and granted. ther testified that appellee offered to pay
N. B. Scott, of Lake Village, Armstrong him $50 for the timber cut on this lease, but Barrow, of Pine Bluff, and Cockrill & Armhe declined to receive the money upon the istead, of Little Rock, for appellant. ground that he had not sold the timber nor been authorized to sell it. He further stated SMITH, J. (after stating the facts as that he had never moved upon this lease, above). [1, 2] The court erred in giving the nor had he cleared the land as his contract instructions set out for two reasons: In the authorized him to do, and that when the con- first place, there was no evidence to submit troversy arose over the timber he abandoned to the jury that appellant ratified or confirmhis contract and made no attempt to clear ed the written lease introduced in the evithe land.
dence. There was no evidence that appellant Appellee admitted that he had cut and re- had any knowledge of it until after the timmoved 30,000 feet of timber from this lease, ber had been cut and removed. And in the but he stated that the other timber replev- second place, the evidence was undisputed ined came off of Keith's own land and other that appellant never at any time sold the timlands on which he had bought the timber, ber nor authorized its sale. Indeed, the lease but he denied that he cut any timber on ap- offered in evidence, and under which appellee pellant's land except from the Keith lease. claimed, is not a sale of the timber and does He further testified that 66,000 feet of lum- not purport to be. It is merely an agreement ber had been taken from him under order of for the rental and clearing of lands, and delivery, and that only 30,000 feet of this had such leases do not operate to convey title to been taken from the Keith lease, and he tes- the standing timber so that the tenant may tified that he paid Keith $150 in money and sell it. In such contracts as the one here set agreed to furnish him the lumber to build a out, the title to the timber and the right to house on the Conway land, and for this con- remove it remains in the owner of the land. sideration he was to have the timber on both If the owner of the land does not remove Kelth's land and lease; that he had offered the timber, the tenant has the right to de Keith lumber to build his house with, but stroy it as it becomes necessary to do so to