(after stating the facts). There are several assignments of error, but such only will be noticed as we regard necessary to consider in the determination of the cause.
It is insisted strongly that the court erred in not directing a verdict for the appellant, and we agree with this contention. The damages proved in this case and resulting, aside and separate from mental anguish, amounted to about $40, and the remainder of the verdict must have been allowed on account of mental anguish. If it be conceded that such damages would have resulted from the failure to deliver the telegram, which is not altogether certain, since theundertaker having the bodyfor interment stated that he would not have forwarded it for the amount mentioned in the telegram nor for the larger amount he would have charged until it was secured by being put up with the express company, all of which presupposes that negotiations would have continued from the receipt of the telegram by Sinclair until satisfactorily concluded by the depositing by appellee of the amount necessary to procure a shipment of the body with the express company; but we do not deem it necessary to pass upon this question. The testimony is undisputed, however that the undertaker, to whom the telegram was intended to be sent, and who had the body in charge, after the telegram was sent from Hot Springs, called the appellee over the long distance ’phone at Hot Springs, having been advised by Hickman, who had previously been called up on the ’phone by appellee and inquired of concerning the body of his son, about which he had telegraphed to Terre Haute, and also sent the’phone message. That he declined to answer the call and talk with the undertaker, giving as his reason that he did not have the $4.00 to expend in payment for the call, and that he relied upon the telegram that he had already sent.
It is further undisputed that Sinclair instructed the telephone operator at Hot Springs, upon being advised that appellee had no money to pay for the message, that he would pay for it, and that she then advised him, Sinclair, that appellee refused to come to the ’phone. Appellee does not deny that he talked over Mrs. Parvin’s ’phone to the central office, after being notified of the long distance call from Terre” Haute for him after his telegram was sent, and told the operator, “I haven’t any more to do with it. I have turned it over to Mc-Gafferty. ” Although he did say that he had no notice that the person desiring to talk with him would pay the expense of the message.
It can not be doubted that appellee could have secured all the information he desired by answering the telephone call of Sinclair, and have had ample opportunity to make any arrangement within his power to procure the shipment of the body of his son for burial or interment in the family burying grounds, and thus prevented all damage resulting from the failure of the delivery of his telegram by so doing. A slight exertion on his part in merely answering the ’phone, and in any event a trifling expenditure of $4.00, and remaining a little while at the ’phone, over which he declined to receive the long distance message from the central office at Hot Springs, would have prevented all but nominal damages. It was clearly his duty to use reasonable effort to lessen any damage that might result from defendant’s breach of its contract and negligence in failing to deliver the telegram.
The rule is: “That where a party is entitled to the benefit of a contract and can save himself from a loss arising from the breach of it, at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.” Warren v. Stoddard 105 U. S. 224, 26 L. Ed. 1117; St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371.
And it makes no difference whether this case be regarded as one arising out of contract or tort, since the principle that the injured'party must reasonably exert himself to prevent damage applies alike to cases of both kinds. Sutherland on Damages, § 90.
Appellee insists, however, that the jury was properly instructed as to contributory negligence, and that it was a question for them, and, having found in his favor, the judgment should be affirmed.
As already stated, the evidence is undisputed, and we do not think it can be said that the minds of reasonable men would differ as to the duty of appellee to answer the long distance call which could have been in reply to his telegram, and which he knew was about the same matter, and receive information of everything he desired to know, and which was necessary to securing the shipment of the body of his" son for burial and thereby prevent any but nominal damages resulting from plaintiff's failure to deliver the telegram, and, such being the case, it was not a question for the jury.
Plaintiff, having failed to perform this simple duty, is not entitled to recover more than nominal damages, and the judgment is reversed, and judgment will be entered here for such damages.
It is so ordered.