Opinion
Opinion delivered January 21, 1929.
1. APPEAL AND ERROR — CONCLUSIVENESS OF VERDICT. — A verdict supported by substantial testimony is conclusive on appeal. 2. TELEGRAPHS AND TELEPHONES — REFUSAL OF PEREMPTORY INSTRUCTION. — Refusal of a peremptory instruction for defendant telegraph company, in an action for damage from delay in delivering a telegram directing the immediate shipment of 50 bales of cotton, held not error, where the message showed on its face that it related to an important business transaction of value to the sender, and gave notice of any direct or actual damages that might result from its negligence in transmission and delivery of the telegram. 3. EVIDENCE AUTHENTICATION OF CORPORATE RECORDS. — It was not error to exclude the testimony of a witness as to the records of a compress company, which he did not claim to have made from information furnished him nor that it was a correct record of the dates of operation of the compress company, which he was required by his duties to keep.
Appeal from Jefferson Circuit Court; T. G. Parham, Judge; affirmed.
Francis R. Stark and Wooldridge Wooldridge, for appellant.
Danaher Danaher, for appellee.
STATEMENT BY THE COURT.
This appeal is prosecuted from a judgment against appellant for damages resulting from its alleged negligent failure to deliver a telegram relating to the sale of cotton and demanding its immediate shipment.
Appellee sued for $975 damages for failure to deliver to his agent, Bell, at Pine Bluff, the following telegram, sent August 16, 1924:
"Boston, Mass., 1008A August 16, 1924.
"E. A. Bell, Pine Bluff, Arkansas:
"Ship fifty strict low white and middling fours and fives to Adams Mass. Notify W. C. Plunkett Sons Co. name R. A. Downs prepay freight Patch three and five Draw lading weight on G. A. Ravinius Co. Boston send compress re-weights us care Ravinius Get lading signed immediately.
"R. A. Downs 109P."
It was alleged that the telegram was not promptly delivered because of appellant's negligence, and that, because of appellant's negligence, it was not received by the sendee, Bell, until 4 o'clock August 19, 1924; that appellee had, at the time of sending the telegram, a written contract with Ravinius Co. for the sale of 50 bales of cotton mentioned in the telegram, and, under the terms of the contract, it was to forfeit if the cotton was not shipped out of Pine Bluff by noon, August 23, 1924; and that if the message had been delivered promptly the cotton could and would have been shipped on August 16 or 21, 1924; that the compress or warehouse company in which the cotton was stored closed on August 16, after running one day only, and made it impossible for the plaintiff to ship the cotton on that date, or at any time before August 23, as under his contract he was bound to do.
The answer admitted the delivery of the telegram to it as set out in the complaint; alleged that it was promptly transmitted to Pine Bluff, where it was received on same date, but that, through error, the telegram was delivered to another party named Bell, not the addressee; that the error was not discovered by defendant until the afternoon of August 19, 1924, on which date, at 4:23 P.M., it was delivered to the proper addressee; denied that the delay in the delivery of the telegram resulted in the failure to have the cotton compressed or shipped by August 23, 1924, and that the compress closed down on August 14, and was not in operation until the 21st, when it ran for one day, and was not again in operation until August 27; alleged that the delay in not having the cotton compressed and shipped out was due solely to the inability or failure of Bell, the addressee, to get that done as directed by appellee, and pleaded affirmatively that the delay in the delivery of the telegram was not the proximate cause of the damages, if any. It further set up the defense that the message was interstate, and under the rules of the Interstate Commerce Commission, under the act of Congress of June 18, 1910, and the tariffs of the telegraph company on file with the Commission, effective July 13, 1921, the plaintiff could not recover in any event a sum in excess of $500, the amount stipulated in its tariffs on file with the Interstate Commerce Commission.
The court instructed the jury, refusing to give appellant's requested peremptory instruction, and it returned a verdict against appellant in the sum of $612.50. Appellee's counsel conceded at the time that the recovery was limited to the sum of $500, but the court instructed the jury to calculate interest on the amount, and judgment was rendered for said amount on the verdict.
On June 9, 1928, appellant moved the court to reduce the judgment to the sum of $500, the maximum amount which could, be recovered upon interstate messages under authority of Western Union Telegraph Co. v. Davis, 170 Ark. 506, 280 S.W. 977, and it was accordingly done.
(after stating the facts). It is contended for reversal that the court should have directed a verdict in appellant's favor, and that, in any event, the evidence failed to show that the delay in the delivery of the telegram was the proximate cause of the damage, which appellant does not deny was sustained by appellee.
It is undisputed that the telegram was sent on the date mentioned and not delivered until August 19 at 4:23 in the afternoon. The testimony on appellee's part showed it was not delivered until a second telegram had been sent him on the 19th, inquiring if the 50 bales would be shipped out this week, and also that appellee's agent immediately began inquiry of the compress company when it would be in operation again and the cotton could be compressed and shipped, and, finding it doubtful whether it could be done at all, the compress running at irregular intervals in the summer, attempted to get an agreement from the railroad company to date the bills of lading back, which the company refused to do.
The testimony is conflicting, that on the part of appellee conducing to show that the cotton could not be sampled and compressed after the delivery of the telegram in time to ship it out on the date specified in the telegram and contract for its sale, and some of the testimony for appellant tending to show that it might have been done. This question was submitted to the jury, however, upon proper instruction, and it determined that the negligent delay in the delivery of the telegram was the proximate cause of the damage resulting from the failure to ship the cotton on time according to the contract and the directions of the telegrams. This concludes the matter, the verdict being supported by substantial testimony, so far as the appellant is concerned.
Certainly no error was committed in refusing to give the appellant's requested peremptory instruction upon the case as made. The message upon its face shows it related to the sale of 50 bales of cotton, the sender and the addressee being cotton buyers residing in Pine Bluff, and well known to be such by the agent of the appellant company receiving the message for delivery. It disclosed on its face that it related to a business transaction of importance and value to the sender, and the company had notice of any direct or actual damages resulting or that might result from its negligence in the transmission and delivery of the message, and was liable therefor. Western Union Telegraph Co. v. Askew, 92 Ark. 133, 122 S.W. 107; Fulkerson v. Western Union Telegraph Co., 110 Ark. 144, 161 S.W. 168, Ann. Cas. 1916D, 221.
We do not find the instructions complained of open to the objections made against them, nor that any error was committed in the exclusion of the testimony of the witness Chaplin from the record, which he did not claim to have made from information furnished him, nor that it was a correct record of the dates of operation of the compress which he was required by his duties to keep. Bush v. Taylor, 136 Ark. 554, 207 S.W. 226.
We find no error in the record, and the judgment is accordingly affirmed.