Bateman v. Western Union Tel. Co

• Decision Date: 26 September 1917
• Docket Number: (No. 36.)
• Citation: 93 S.E. 467
• Court: North Carolina Supreme Court
• Parties: BATEMAN. v. WESTERN UNION TELEGRAPH CO.

93 S.E. 467

(174 N.C. 97)

BATEMAN.

v.WESTERN UNION TELEGRAPH CO.

(No. 36.)

Supreme Court of North Carolina.

Sept. 26, 1917.

Appeal from Superior Court, Washington County; Daniels, Judge.

Action by Maggie D. Bateman against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Gaylord & Gaylord and J. C. Coggins, all of Plymouth, for appellant.

Albert T. Benedict, of New York City, and Small, MacLean, Bragaw & Rodman, of Washington, for appellee.

WALKER, J. This action was brought to recover damages for mental anguish, alleged to have been caused by the negligence of the defendant in failing to properly transmit and deliver to the plaintiff a telegraphic message, filed with the defendant at Durant's Neck, N. C, by her brother, George Simpson, and addressed to her at Plymouth, N. C., in the following words: "Father died last night. Will bury Sunday three p. m." As delivered to her, the message read: "Walter died last night. Will bury Sunday three p. m." The defendant transmitted the message by way of Norfolk, Va., instead of directly to Plymouth, N. C., and the defendant contends, for that reason, that the sending of the message was a transaction in interstate commerce, and therefore the case should be governed by the federal law, which denies a recovery for mental anguish. Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197. The plaintiff, on the contrary, argues that it is not interstate but intrastate, commerce; the initial and terminal points of the transmission being in this state. If the defendant's contention is the right one, and the case must be considered and decided according to the federal rule, then plaintiff is not entitled to recover, as it would present the same question we decided at the last term against the plaintiff's right of recovery in Meadows v. Telegraph Co., 91 S. E. 1009, and Norris v. Telegraph Co., 93 S. E. 465, at this term. It would be superfluous to restate the reasons upon which the decisions in those cases were based, and we content ourselves with merely referring to them, as this case is, as to the question now being considered, substantially identical with them in respect to its nature, and is precisely like the Meadows Case, as the alleged negligence there was an error in the message as delivered.

The only questions left for consideratherefore, is whether the transaction in this cae was interstate commerce. We are of opinion that it was, and especially so if in sending the message via Norfolk, Va., the defendant did so in good faith, and not for the purpose merely of evading the law. On the face of the transaction, and without any suggestion and finding of a fraudulent purpose to circumvent the law and acquire the protection of the federal principle, and to rid itself of the contrary rule of the state court, it is an interstate, and not an intrastate, transaction.

The auhorities to this effect are very numerous and consistent. Shelby Ice & Fuel Co. v. Railway Co., 147 N. C. 66, 60 S. E. 721. In that case we followed Hanley v. Railroad Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333, which finally determined the question in favor of the view that although the two points are in the same state, yet, if in the transportation by a carrier any part of the route is in another state, it is interstate commerce. The court said by Justice Holmes, quoting and adopting the rule stated by Justice Fields, on the circuit, in P. C. Steamship Co. v. Railroad Commissioners (C. C.) 18 Fed. 10, and also citing Lord v. Good-all, 102 U. S. 541, 26 L. Ed. 224:

"To bring the transportation within the control of the state, as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the state."

With reference to these words, Justice Holmes said:

"We are of opinion that the language which we have quoted from Mr. Justice Fields is correct."

Other cases cited by that court are State ex rel. Railroad Warehouse Co. v. Chicago, etc., Railroad Co., 40 Minn. 267, 41 N. W. 1047, 3 L. R. A. 238, 12 Am. St. Rep. 730; Sternberger v. Cape Fear, etc., Railway Co., 29 S. C. 510, 7 S. E. 836, 2 L. R. A. 105; and M. P. Protective Ass'n v. Delaware, etc., Railroad Co., 7 Inter. Com. R. 92, 160, 161. The court criticized...