Western Union Telegraph Co. v. Wilson

Wood, J.,

(after stating the facts). 1. It was for the jury, under the evidence, to determine whether the agents of appellant, intrusted with the duty of 'delivering messages, exercised the diligence that a reasonably prudent person would, under like circumstances, have exercised in the performance of a similar duty.

We are not able to say as a matter of law, from the peculiar facts of this record, that the agent and messenger boy exercised such care to deliver the message as a reasonably prudent person would have exercised under similar circumstances. Camden is not a very populous city. The messenger boy only made a search of a little more than one hour’s duration, and the circle of his inquiry was not very extensive or comprehensive. He testified in general terms “that he tried as hard as he could,” that “he made inquiry of all the people he knew,” and that “he went in ’most all the business houses” and “asked all around town for him.” But he could only name seven places where he made inquiry, and he could recall the names of only two persons of whom he made inquiry. The general delivery clerk at the post-office knew Hufstedler and his family. .Hufstedler called there and received his mail. The messenger boy did not inquire of’ him. He made no inquiry of some business houses within 200 yards of the telegraph office. One of these was a grocery store where Hufstedler bought his groceries, and at least five people there knew Hufstedler. He made no inquiry of the depot agents close at hand, of teachers who might know the children of Hufstedler in the public schools; of preachers who might know Hufstedler if he attended any of the churches on Sunday, which he did; of the policemen, one of whom at least knew him. The agent himself made inquiry for a much shorter time, and of still fewer people. The agent of the telephone company had a ■call for Hufstedler on Sunday, December 6, and “tried to find him, but was unable to do so. He asked some people around town, but could not locate Hufstedler from them.” He does not, however, tell how many he inquired of, or whom he asked. The jury might have concluded that a person of ordinary prudence, under the circumstances, would have made a more diligent inquiry, and that appellant’s servants were negligent in not doing so. It was peculiarly a jury question, and was submitted on the first instruction given at the request of appellee.

2. By this first instruction the court evidently intended to tell the jury that it was the duty of the appellant to make such effort as a man of ordinary prudence would use under similar circumstances. The language “reasonable effort” as used in the instruction was a mere inaccuracy of verbiage, which could and should have been corrected by specific objection. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255 ; St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark. 46; Williams v. State, 66 Ark. 264; Trulock v. State, 70 Ark. 568; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; Ark. Mid. Rd Co. v. Rambo, 90 Ark. 108; St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184.

There was no error in giving instructions 2 -and 3 at the request of appellee. It is not improper to assume as matter of law that a mother would have mental anguish if deprived, through the negligence of another, of the mournful privilege of attending the funeral of her son. She would be a most unnatural mother, were it otherwise. Western Union Tel. Co. v. Sockwell, 91 Ark. 475.

Instruction number 3, though brief, was correct.

It was shown by the undisputed evidence that Hufstedler knew that it was the wish of appellee that her son be interred in the family burial grounds near Malvern. The father of the deceased and one sister were buried there, and none of the family was buried elsewhere. It was not error to refuse the third prayer of appellant.

Contributory negligence was not set up in the answer, nor was there any evidence to warrant the submisison of any such question to the jury. The court therefore did not err in refusing appellant’s prayers numbered 5, 6, 7 and 10.

The judgment is correct. Affirm.