Western Union Telegraph Co. v. Lewis

116 S.W. 894, 89 Ark. 375, 1909 Ark. LEXIS 93

• Court: Supreme Court of Arkansas
• Decided: February 22, 1909
• Status: Published

Opinion

Hart, J.,

(after stating the facts.) Two assignments of error are urged for a reversal.

1. It is insisted that the court erred in refusing to instruct the jury that there was no evidence of negligence at Abbott. There was no prejudice in this. At the conclusion of the testimony of the appellee, ail evidence tending to show any negligence on the part of the company at Abbott was withdrawn from the consideration of the jury. The instructions of the court show that the case was submitted to the jury solely upon the charge of negligence at Fayetteville. The minds of the jury were directed clearly and explicitly to the question of negligence at Fayetteville, and thus it appears that the question of negligence at Abbott was eliminated from the case.

2. Counsel for appellant contends that the court erred in not instructing the jury that “sending a message to a person living in a family not of her name in a city of 6,000 population, without street number or care of some person or place or some other aid to find the addressee, was negligence which would prevent a recovery for failure to deliver such message caused by want of a better address.” There was no error in refusing this instruction.

The instruction asked for shows by its own terms that the object of a more definite address was to enable the company to find the addressee of the message. The testimony on the part of appellee showed that the company received information of her place of residence in time to have delivered the 'message on the day it was sent, and to have enabled her to have reached the bedside of her brother two days before his death. On the other hand, the company denies that it received this information, and claims that it was unable to find appellee although it made diligent efforts to do so. The want of a definite address could not excuse the company for failure to deliver the telegram unless it caused or contributed to the failure. Arkansas & La. Ry. Co. v. Stroude, 82 Ark. 117.

At the request of the appellant the court did give the following instruction;

“If you find that Fayetteville is a city of 6,000 people, that plaintiff is an unmarried woman living in a family of another name, that she never received a telegraphic message in Fayetteville, that the employees of the defendant at Fayetteville did not know her, that they inquired of the Post Office employees and others likely- to know those, living in Fayetteville and could not find her, then there was no negligence of the defendant at Fayetteville.”

This presented to the jury the issue upon the disputed question of fact, and was all that the appellant had a right to have given upon this point.

No other questions are raised by the record. Therefore, •finding no prejudicial error, the judgment is affirmed.