Kaufman v. Western Union Telegraph Company

• Citation: 224 F.2d 723
• Decision Date: 31 August 1955
• Docket Number: No. 15346.,15346.
• Parties: Bertha KAUFMAN, Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 723 (1955)

Bertha KAUFMAN, Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Appellee.

No. 15346.

United States Court of Appeals Fifth Circuit.

July 28, 1955.

Rehearing Denied August 31, 1955.

Oscar H. Mauzy, Otto B. Mullinax, and Mullinax & Wells, Dallas, Texas, for appellant.

Ashton Phelps, New Orleans, La., John W. Miller, Dallas, Tex., John H. Waters, New York City, Phelps, Dunbar, Marks & Claverie, New Orleans, La., of counsel, for appellee.

Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District Judges.

RIVES, Circuit Judge.

This appeal is from a summary judgment for the defendant, Western Union Telegraph Company, the district court holding that for negligent delivery of an interstate telegram and wrongfully informing the addressee that it was a death message when in fact it was not, there can be no recovery of damages for mental anguish nor for physical illness and medical expenses ensuing from such mental anguish.¹

A preliminary question of federal jurisdiction not raised by the parties, but which the Court is bound to consider sua sponte, has given us some concern. The complaint does not affirmatively allege that the parties are citizens of different states. Its averments are: "That the plaintiff is a resident of Dallas, Dallas County, Texas"; "That the defendant, Western Union Telegraph Company, is a corporation organized under law with an office and place of business in Dallas, Dallas County, Texas, where service of citation may be had." The amount sued for, $20,000.00, is, of course, more than the jurisdictional amount. The complaint also alleges that the telegram was transmitted from Tulsa, Oklahoma to Dallas, Texas, and it may be that a suit for damages resulting from negligence in the delivery of an interstate telegram arises under the Constitution, laws or treaties of the United States, so as to give federal jurisdiction, 28 U.S.C.A. § 1331, but we have been cited to no case so holding, and we do not find it necessary to decide that question. For jurisdiction to be founded upon diversity of citizenship, 28 U.S.C.A. § 1332, it must affirmatively appear from the complaint that the plaintiff is a citizen of one state and the defendant a citizen of another. It is provided, however, by 28 U.S.C.A. § 1653 that: "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." The theory seems to be that "if jurisdiction actually existed from the facts at the time when the complaint was filed, even though not properly pleaded, * * * the formal defect in the pleadings did not deprive the Court of jurisdiction at the time when the action was filed, if such defect was later corrected." Stern v. Beer, 6 Cir., 200 F.2d 794, 795. Cf. Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113, 115. In all probability the plaintiff being a resident of Texas is also a citizen of that State. We are confident that the Western Union Telegraph Company is not incorporated under the laws of Texas. The 1950 edition of the Encyclopedia Britannica, Vol. 23, p. 533, indicates that it is a New York corporation. Since the question is not raised by the parties, and the allegations of jurisdiction if defective may be amended, we proceed to a consideration of the case on its merits. However, so that there may be no mistake about jurisdiction, unless the appellant, pursuant to 28 U.S.C.A. § 1653, quoted supra, files an appropriate amendment in this Court within ten days after this decision, the case will then be placed back on the rehearing docket and briefs invited on the question of jurisdiction.

The complaint alleged that the plaintiff resided at the Melrose Hotel in Dallas, Texas. She knew that her daughter, Janice Kaufman, was en route from Tulsa, Oklahoma to Dallas, Texas by airplane. Prior to departing by plane from Tulsa, the daughter dispatched a telegram over defendant's telegraph system. According to defendant's answer, the message was addressed to plaintiff, signed "Janice", and read, "Will be home at 7:46 American Airlines tonight."

In pertinent part the complaint continued as follows:

"Plaintiff would further show that the defendant in transmitting said telegram from Tulsa, Oklahoma to Dallas, Texas, did transmit same as a `death message\' and caused said message to be received at its station in Dallas, Texas, and placed same in an envelope and delivered same to its messenger and did advise said messenger that same was a death message, and did further cause said message to be by its messenger and agent delivered to the Melrose Hotel. That said messenger and agent of the defendant Western Telegraph Company represented said message to be a death message to this plaintiff.

"Plaintiff would show that she is a woman with high blood pressure with a sensitive and nervous temperament. Immediately upon the receipt of the `death message\' she was rendered violently ill and went into a state of shock and it was necessary for her to receive immediate medical attention. Plaintiff would show that she has remained under the care of a doctor since that date. Plaintiff would further show that she received permanent and disabling injuries as a result of the receipt of the said death message, and that same has aggravated her condition of high blood pressure and has caused her to become weak and debilitated; has produced serious and lasting injuries to her ability to stand and to move about. In addition plaintiff would show that she has suffered extreme mental and physical pain and anguish as a direct and proximate result of said death message, all to her damage in the sum of $20,000.00.

"Plaintiff would show that the defendant was negligent in the transmission of the telegraphic message from Janice Kaufman to this plaintiff, and was negligent in delivering said message to its agent and messenger in representing said message to be a death message; and that said messenger and agent was negligent in causing the message to be represented as a death message to this plaintiff. That each act of negligence was a proximate cause of this plaintiff\'s injury and damage."

In addition to taking issue with the material allegations of the complaint, the defendant filed three complete affirmative defenses, which are hereinafter quoted. No affidavits were offered by either party; and the hearing of the defendant's motion for summary judgment consisted entirely of the following:

"The Court: May I ask you gentlemen to make an open Court agreement so I will understand the facts as presented by both parties?

"That is, that the plaintiff here was a guest at a hotel and that the delivery boy of the Western Union Telegraph Company, the defendant, handed a message to the clerk of the hotel, saying at that time, `Here is a death message.\' That, thereupon, the hotel clerk called the plaintiff in her room and said, `I am sending up a death message for you.\'

"Are those the facts?

"Mr. Miller: We will not dispute that. Yes, I will agree to that.

"The Court: Is that a fact?

"Mr. Miller: I will agree to that.

"The Court: Does the plaintiff agree those are the facts?

"Mr. Mullinax: I will agree that those are the facts, with this exception; it is my understanding that the Western Union agent was actually standing there by the phone and directed the clerk to tell the plaintiff that it was a death message. The messenger actually was passing on the information. He told the clerk that it was a death message. As I understand, it all happened at one time, that is what was represented to the plaintiff.

"Mr. Miller: I can\'t agree to that, for the reason, I understand it was a little Mexican boy, and I cannot agree that he was telling the clerk to call the lady.

"The Court: I can\'t enter any judgment unless you gentlemen agree upon the facts.

"Mr. Miller: The facts as plead in that respect, I agree to it, he has added something outside of the pleading, that he is not sure of himself, as to whether the boy would not leave the premises until the clerk had relayed the information upstairs.

"I will stipulate exactly as plead, that it is true that the young man went to the hotel clerk.

"The Court: I stated the facts, do you agree to that?

"Mr. Miller: Yes.

"The Court: Does the other side agree to that?

"Mr. Mullinax: Yes.

"The Court: Then I sustain the motion for summary judgment for the defendant, because it has long been the rule that that cannot be a recovery in the United States Court.

"Mr. Mullinax: Please note our exception, and we will give notice of appeal."

On a motion for summary judgment, the court must take that view of the pleadings, of the evidence if any, and of the record most favorable to the party against whom summary judgment is sought. 6 Moore's Federal Practice, 2nd ed., Para. 56.15(1), page 2114; Purity Cheese Co. v. Frank Ryser Co., 7 Cir., 153 F.2d 88.

Under that rule, defendant was, of course, not entitled to summary judgment on its pleadings simply denying the allegations of the complaint, but must rely on one or more of its affirmative defenses. For convenience, let us consider the three affirmative defenses in reverse order.

"Affirmative Defense No. 3.

"Any act of the messenger in making the alleged statement to the Hotel Clerk was wholly unauthorized, without the scope of his employment, and hence not binding on the defendant."

Looking at the case in the light most favorable to the plaintiff, we cannot agree with the opinion of the district court that, "When the clerk of her hotel, who was not an agent of the defendant, telephoned her that he was sending up a death message, it was wholly gratuitous, so far as the defendant is concerned, and the defendant is not, and, was not bound by what the hotel clerk said." To the contrary, the complaint alleged that the defendant transmitted the message as a "death message" and advised its messenger that it was a death message.

Construing the complaint most favorably to the plaintiff, the messenger was acting within the scope of his...