Harry Arant and Burt Coyne were roommates, living at Lissie, near Eagle Lake, Texas. Harry Arant was born and reared at Malvern, Arkansas, where his parents resided. He died on the 20th of February at 2:15 p. m. Burt Coyne went to Eagle Lake immediately after Harry’s death to arrange for the body to be sent to the home of his parents, and discussed the matter fully with the agent of the telegraph company, and sent this telegram to Harry’s mother:' “Harry died today. Wire disposition of body at once.” This was sent at 4 ¡48 p. m. on February 20, 1907. He was told by the operator that it would take about two hours to get an answer, and he called repeatedly thereafter for an answer. None being received, the body of Harry Arant was buried at five-thirty p. m. February 21 st, at Uissie, Texas.
The message was received by Mrs. Arant at about the hour of his burial, 5:3o p. m. on February 21st. It was shown that a message from Eagle Lake to Malvern would be relayed three times; and if the message was given precedence, as was usual with death messages, from fifteen to thirty minutes would be good service, while if it took its turn with business messages two hours would be good service. Immediately upon receipt of this message, Mrs. Arant sent this message to Burt Coyne: “Bring body at once; expenses will be paid here.” To this a reply was sent: “Message too late; body buried yesterday.”
Another son of Mrs. Arant and a friend were sent to Texas to disinter the body and bring it to Malvern for burial. They had to expend $140 for a metallic coffin, which was made necessary by reason of the condition of the body. Had the body been shipped home immediately after death, a coffin suitable for the purpose could have been purchased for $35. The coffin in which he was first buried cost $25. The expenses of the trip for the body were shown in the evidence. The body was buried at Malvern, and a funeral held at this burial. The body was too decomposed to permit the casket to be opened after its arrival at Malvern.
This suit was instituted by Mrs. Arant against the telegraph company seeking to recover for mental anguish and the expenses incident to the interment and disinterment due to the negligent delay in the delivery of the telegram. She recovered a verdict for $400, and the telegram company has appealed.
It is insisted that there is no element of mental anguish shown. Mrs. Arant was questioned as to her feeling on the subject. Without going into a discussion of whether this real but intangible element, mental anguish, can be described in testimony or dissected on cross-examination, it is sufficient to say that the court is of opinion that there is a- substantial basis for mental anguish shown in the facts of this case.
In Western Union Telegraph Company v. Blackmer, 82 Ark. 526, a recovery was sustained under this statute where the negligence of the company prevented a daughter being with her mother at her death.
In Western Union Telegraph Company v. Weniski, 84 Ark. 457, there was an action against the company for mental anguish growing out of its negligence in the delivery of a message telling of the death of a brother, and the court said: “Her only deprivation on- account of the failure to deliver the telegram was the melancholy pleasure of attending the funeral of her deceased 'brother and the satisfaction of having fully discharged her duty to the dead. It may be that such a bereavement produced mental injury, distinct from that resulting naturally from the death of a brother or other loved one, which would justify the assessment of some -pecuniary -compensation, but we fee-1 sure that a far less sum than that assessed by the jury in this case would, under the circumstances shown by the evidence, be sufficient to afford full compensation to the plaintiff for her injury in this respect.”
In Western Union Telegraph Company v. Hollingsworth, 83 Ark. 39, it was said: “The Legislature has put in force mental anguish as elements of damage, and the court must take the construction which common sense and experience teaches should be given to the terms describing such elements of damage. That any one would suffer as keen and real mental anguish for failing to hear from the sick bed of a dangerously ill member of the family is too apparent to need any explanation; and no refinement or distinction can take away the reality of such suffering.”
There -can be no distinction in principle between those cases and this. The mother was deprived of the privilege of seeing the body of her son before its burial, and of paying the usual and customary rites to the dead in the usual and customary way. She was not given an opportunity to attend the interment of his body in Texas. It was contrary to her wishes that he should be interred there, but her wish was that he should be buried in the community where he was reared. It is true that after a week of anxiety over the unfortunate situation produced by the failure to deliver the telegram this object was finally accomplished. This is but another phase of the mental anguish, and is no less real than in the cases mentioned, and in other cases which may be found discussed in the opinions in those cases.
Opinion delivered January 11, 1909.It may be questioned whether the telegram gave such notice to the company on its face of the additional expense incurred by the interment in Texas and sending the body to Arkansas for a second interment as would justify recovery for this expense. But evidence was adduced upon this point, and the telegraph company asked the court to give this instruction, which was done: “If you .find for the plaintiff, you will assess her damages for pecuniary loss at the amount she expended for the burial of the remains at Eagle Lake, Texas, and the amount she expended for exhuming, the remains for shipment to Malvern, less any items of expense that she would have had to pay if the telegram had been promptly delivered.”
Under this instruction the jury were authorized to find a certain amount in her favor from the evidence; and the appellant can not complain of the recovery on this account, for it was invited by this instruction. The amount of pecuniary loss, deducted from the face of the verdict, leaves the recovery for the mental anguish element léss than $300, and it can not be said that it is excessive.
Other questions have been presented and discussed by the appellant, but the court is unable to find wherein there has been error committed to the prejudice of the appellant. In fact, some of the instructions given are more favorable to it than the law authorizes; and there is evidence sufficient to support the verdict.
Judgment is affirmed.