on rehearing.
McCulloch, C. J.It is insisted that the conclusion reached in the present case is in conflict with the decision in Western-Union Tel. Co. v. Ford, 77 Ark. 531. In that case a telegram was sent from Missouri, where damages on account of mental anguish are not recoverable, into Arkansas, and the negligence occurred here. Suit was brought by the addressee, and we held that damages for mental anguish could ;be recovered, although not recoverable in the State whence the message came. The opinion in that case contains inaccurate language, which is in conflict with other decisions of this court. We said that the right to recover such damages did not depend on any contractual relation existing between the Telegraph Company and the person injured, and that no contract existed between the addressee of the message and the company. Now, the addressee is one for whose benefit the contract is made. Therefore, a contractual relation with him is established. We have in other cases recognized the principle that the cause of action to recover damages on account of mental anguish arises out of the contract, although the element of damages is created by statute.
In Arkansas & La. Ry. Co. v. Stroude, 77 Ark. 109, we said of this statute that “manifestly, it was the intention of the lawmakers to change by statute the law as declared by this court in the case referred to above, and to make mental pain and anguish an element of damages resulting from a negligent failure to receive, transmit or deliver a telegraphic message.”
In other cases we have held that the contract governs to the extent that a stipulation therein, requiring notice of a claim for damages, is enforceable, and that no recovery can be had unless notice be given in accordance with the terms of the contract. Western Union Tel. Co. v. Moxley, 80 Ark. 554; Western Union Tel. Co. v. Nelson, 86 Ark. 336.
In Western Union Tel. Co. v. Raines, 78 Ark. 545, and in Western Union Tel. Co. v. Hogue, 79 Ark. 33, we recognized the force of the contractual rights of the parties by holding that the rule in Hadley v. Baxendale, 9 Exch. 341, would control so as to exclude a recovery of damages when notice was not given that the same might accrue, Judge Riddick, speaking for the court in the Hogue case, said: “Such damages may, under our statute, be recovered in some cases, but the statute does not change the rule that when a plaintiff seeks to recover of a defendant special damages on account .of the breach of a contract he must show that at the time the defendant entered into the contract he had notice of the special circumstances out of which the special damages arose, so that it may be reasonably said, as a matter of law, that such special damages were in contemplation of the parties at the time they made the contract.” He then quoted the following from the American & English Encyclopedia of Law (vol. 27, p. 1059): “While actions against telegraph companies are not necessarily or usually ex contrqctu, but ex delicto for a breach of a public duty, the cause of action is so far dependent upon the original contract of sending as to make the rule just stated controlling, and it has been universally applied in this class of actions, without regard to whether the particular action is ex contractu or ex delicto.”
In the Raines case Judge Battle, speaking for the court, said: “The damages recoverable under the statute are such as the jury may conclude resulted from the negligence of the telegraph company. Such damages are allowed as a compensation for the mental anguish or suffering; and the liability of the company for the same depends upon its having had notice, before or at the time of receiving the telegram,, of the special circumstances on account of which mental suffering was caused by negligence in transmitting or delivering the message. This notice may be given by or through the telegram itself or otherwise.”
We think the decisions in all these cases are reconcilable with the decision in the Ford case, though some of the language used in the Ford case is, as already stated, inaccurate. The Ford case is also reconcilable with the conclusion reached in the present case. Mr. Wharton, in his work on Conflict of Laws, states the principles upon which a recovery can, without conflict of principles, be had in each of these cases. (Wharton on Conflict of Laws, 3d Ed. § 471f) He states that “the general rule seems to be that a contract made in one State or country for the transmission of a telegram from a point in that State or country to a point in another is governed by the law of the State or country in which the contract is made and from which the telegram is sent, rather than by that of the State in which it is received,” but that some cases “assume that the performance of the contract is the delivery of the telegram, and that the transmission is merely a means of enabling the telegraph company to perform ;. and they therefore refer the contract to the law of the place of delivery as the sole place of performance.” He then proceeds : “Assuming, however, that the former rule is the correct one, it does not apply to matters that relate to the remedy, as distinguished from the substantive contract, and therefore does not operate to relieve a contract from the effect of a statute, which is remedial rather than substantive, of the State in which the telegram was to be delivered, if the action is brought in that State.”
This fully sustains, without conflict, the decision in the P ord case and in the present case. The statute makes mental anguish an element of recoverable damage for failure to receive, transmit or deliver a telegram; yet the relation out of which the duty arises is created by contract, and the cause of action primarily grows out of the contract. For this reason a recovery may be had here for negligent failure to deliver a message, even though the negligence occurred in a State where mental anguish is not an element of recoverable damages. On the other hand, as in the Ford case, a recovery may be had for a negligent failure here to deliver a message sent from another State where such element of damage is not recognized. When the negligence occurs here, the statute of this State applies, and makes mental anguish an element of damages, regardless of the law of the State whence the message came, for the statute is intended to give redress for negligent failure to perform the contract to deliver a message.
The peition for rehearing is therefore denied.