(after stating the facts.) 1. Appellant contends that appellee is barred from recovery by failing to comply with the condition requiring presentation of claim for damages within sixty days.
This stipulation has been held to be valid by this court in Western Union Telegraph Co. v. Dougherty, 54 Ark. 221, and is generally upheld as reasonable by ¡the courts of the country.
We have said in Western Union Tel. Co. v. Ford, 77 Ark. 531, and Arkansas & La. Ry. Co. v. Lee, 79 Ark. 448, that suits against telegraph companies in this State to recover for mental anguish caused by negligence in failing to receive, transmit or deliver messages are not dependent upon contract, but that the right of action is conferred by the statutes of this State. This does not mean, however, that the service in transmitting and delivering the message rendered by the telegraph company is not performed under contract, and that the contract may not contain reasonable stipulations which will bind the sender and also the addressee for whose benefit it is sent. On the contrary, we hold that the stipulation, which is reasonable, applies to claims under the statute for damages for mental angulish.
The stipulation does not, however, require the amount of the.damages claimed to be asserted in the notice to the company. A reasonable interpretation of the stipulation is that it requires only notice to the company of the negligence of its servants in failing to receive, transmit or deliver the message. Its object is to require notice of the negligent act to be given so that the company may have an opportunity to investigate and ascertain whether or not its servants have been negligent, as claimed.
As was said by the Supreme Court of North Carolina in Sherrill v. Telegraph Co., 109 N. C. 527: “It is a reasonable requirement, enabling the company to inquire into the nature and circumstances of a mistake in or of the delay or non-delivery of the message while the matter is still within the memory of the witnesses. In view of the number of telegrams constantly passing .over the wires, some such stipulation is absolutely necessary to protect the company from imposition. It is not a statute of limitations restricting the time within which action may be brought.”
This is' the interpretation placed by this court upon a similar stipulation in a railroad bill of lading. Kansas & A. V. Rd. Co. v. Ayers, 63 Ark. 331. The notice given by appellee fully apprised the company of the alleged negligence and asserted a claim for damages. He did not then claim damages for mental anguish for the reason, as he states, that he did not know that the law allowed such damages. This omission did not preclude him from thereafter claiming such damages.
2. It is -urged by appellant that damages can not be recovered for mental anguish concerning those not related by ties of blood, unless at the time of sending the message notice was given to the company, in the face of the message or otherwise, of the existence of s.uch relationship as would give rise to mental suffering in the event of delay in the delivery of the message. Counsel argue that this principle must follow from an application of the rule in Hadley v. Baxendale, 9 Exch. 354, which is held by this court to apply to contracts for transmission and delivery of telegraphic messages. W. U. Tel. Co. v. Short, 53 Ark. 434. Cases are brought to our attention holding that, even though ^the message gives notice on its face that it concerned sickness or death of another and contains'a summons to the addressee, still there can be no recovery for mental anguish by one not related by blood unless the company was notified of the relationship which would give rise to the mental anguish. This is the doctrine of the Texas courts. W. U. Tel. Co. v. Coffin, 88 Tex. 94. That court has also held that an uncle could not recover for mental anguish caused by failure to promptly deliver a telegram containing information of the illness of his niece and summoning hiim to attend, because there was no notice to the company that the relationship was such as might cause mental suffering on account of delay in delivering the message. W. U. Tel. Co. v. Wilson, 75 S. W. 482. The doctrine announced by those cases does not commend itself to our aproval. The rule in Hadley v. Baxendale can not be extended further, in this class of cases, than to hold that, before the company can be made to respond in damages for mental anguish inflicted by negligent delay in transmission or delivery of a message, it must have notice of the facts from which it may reasonably be inferred that such damages may result from delay. Where the message upon its face gives notice of a state of facts, as of physical injury, illness or death, from which the company may fairly infer that mental anguish will result to the sender or addressee from delay in its transmission or delivery, then the company will be liable for negligent delay. Special notice that the relationship between the parties is such that delay will cause mental anguish is unnecessary. Cashion v. Telegraph Co., 124 N. C. 459. In Lyne v. Telegraph Co., 123 N. C. 129, it was held that where a telegram relates to sickness or death it is not necessary to disclose to the company the relation of the parties, as there is a common sense suggestion that it is important, and that mental •suffering to some one w|ill result from delay.
The fact that a- message is sent relating to death or illness is sufficient to reasonably indicate that the addressee is interested by ties of affection in the person about whom the message relates. The message in the case at bar evidently relates to the physical condition of plaintiff’s father-in-law, and contains the admonition, “You had better come at once.”' Taking a common sense view of its language, no other interpretation could have been put upon the message than that it meant to convey the information that Mr. Robertson’s physical condition remained unchanged since the last communication, and that the plaintiff was interested in him by ties of affection, and should go to him at once. The message could hardly be understood to mean anything élse.
3. Appellant also contends that, because the plaintiff reached the bedside of his father-in-law before the death or loss of consciousness of the latter, there can be no recovery. The question was properly submitted to the jury to determine whether or not the plaintiff sustained mental anguish on account of the delay. He and his wife were in Little Rock awaiting a summons to the bedside of her father, Mr. Robertson, who was ill in Cairo, 111. He communicated with his brother-in-law, Staehle, in Cairo at night, and ascertain the critical condition of Mr. Robertson, and that four physicians were then consulting as to his condition. Staehle promised to telegraph him early the next morning as to Mr. Robertson’s condition and advise him whether or not to go.. He'awaited the message anxiously all the next day, and made repeated inquiries at the telegraph office. He says that he spent a day of extreme- worry and anxiety on account of failing to get the message, and was delayed twelve hours in getting to the bedside of the sick. It is true that he reached there before death occurred, and returned to Little Rock, after some days, before death occurred, but he suffered, nevertheless, during the period of the delay in delivering the message and the delay in reaching the bedside of the slick with his wife. How much he suffered, was a question for the jury. We can not say that $300 was too much to allow.
Judgment affirmed.