Gray v. W.U. Tel. Co.

• Decision Date: 15 October 1901
• Citation: 64 S.W. 1063,108 Tenn. 39
• Parties: GRAY v. WESTERN UNION TEL. CO.
• Court: Tennessee Supreme Court

64 S.W. 1063

108 Tenn. 39

GRAY v. WESTERN UNION TEL. CO.

Supreme Court of Tennessee.

October 15, 1901

Appeal from circuit court, Rhea county; M. D. Smallman, Judge.

Action by Kate N. Gray, a married woman, by her next friend, against the Western Union Telegraph Company. From a judgment in favor of the plaintiff for nominal damages, she appeals. Reversed.

Givens & Hensley and Burkett, Miller & Mansfield, for appellant.

Foster V. Brown and B. G. McKenzie, for appellee.

McALISTER J.

Kate N Gray, a married woman, brings this suit, by C. H. Gray, her husband, as next friend, against the defendant company, to recover damages for failing promptly to transmit and deliver a telegram sent by her from Taylor, Miss., to her husband, C H. Gray, at Dayton, Tenn., informing him of the serious illness of their daughter, and requesting him to come to Taylor. The trial below resulted in a verdict and judgment in favor of the plaintiff for nominal damages. Plaintiff appealed, and has assigned errors.

The facts are practically undisputed. It appears that in July 1900, C. H. Gray was at Dayton, Tenn., where for some months he had been engaged in business, and at that time his wife, Kate N. Gray, with her daughter, Louise, were in the state of Mississippi, where the family resided. It further appears that C. H. Gray still retained his residence in Mississippi. On July 15, 1900, Mrs. Gray addressed to her husband the following telegram, to wit: "Louise is sick. Come on first train. Stop at Taylor." This message was promptly transmitted to Dayton, but was held at the latter place from the afternoon of July 15th until the morning of the 16th, when it was delivered to the sendee. The daughter died at 10 p. m. on July 15th, and was buried, on advice of physicians, at 5 p. m. July 16th. It is alleged that in consequence of the negligence of the company in delivering the message, the plaintiff's husband, C. H. Gray, was unable to be with plaintiff at the funeral, to comfort and minister to her. On the morning of July 16th, after receipt of his wife's message, C. H. Gray telegraphed as follows: "Unless Louise is dangerous, cannot come until first of month." Shortly after this message was sent, plaintiff received another telegram, sent at the request of his wife, stating: "Louise died at 10 p. m. yesterday. Come on first train to Taylor." C. H. Gray, the husband, then left Dayton on the afternoon of July 16th, and reached Taylor on the morning of July 17th, but the daughter had been buried at 5 p. m. on July 16th. It appears that, if the telegram from Mrs. Gray which was received at the office of the company in Dayton at 5:50 p. m. on July 15th had been promptly delivered, the husband, C. H. Gray, could have taken a train which would leave a half hour later, and have reached Taylor prior to his daughter's interment. He testifies that he would have taken said train. It further appears that the husband, C. H. Gray, after the receipt of the last telegram, announcing his daughter's death, took the first train that made connection for Taylor. As already observed, this is the suit of the wife, and the gravamen of the action is the loss to her of the presence and consolation of her husband at the daughter's funeral. Among other pleas filed by the defendant company was the following, to wit: "That the telegram about the delivery of which complaint is made was filed at one of its [the company's] offices in the state of Mississippi, and the contract for the transmission and delivery of said telegram was made and entered into by the parties to the contract in the state of Mississippi, and in reference to the laws of said state; and defendant avers that according to the laws of Mississippi, under which the contract was made, the plaintiff has no right of action to recover the damages sued for." Plaintiff's counsel demurred to this plea because immaterial and insufficient in law, but the demurrer was overruled. Plaintiff then filed the following replication to said plea, to wit: "She admits the delivery of the telegram to defendant at one of its offices in the state of Mississippi, and that the contract for the transmission and delivery of said telegram was made in the state of Mississippi, and according to its laws she would have no right of action to recover the damages sued for; but she denies that the contract for the transmission and delivery of said telegram was entered into in reference to and to be governed by the laws of said state further than the confines of the state of Tennessee, and in which latter state the default sued for is shown to have occurred." Defendant moved to strike out this replication, but the motion was overruled. At a subsequent term plaintiff, reserving her exceptions, by leave of the court filed an additional replication to the fourth plea, viz.: "That her cause of action herein arises under the statutes and laws of Tennessee, and not under the laws of Mississippi, and that in the making of the original contract for the transmission and delivery of said telegram she did not waive or renounce any rights afforded her by the laws of Tennessee, and for this reason she should not be prejudiced by the laws of Mississippi." Issue was joined on this replication. The court charged the jury, among other things, as follows: "If the proof shows the message not delivered in a reasonable time, and that plaintiff's husband on that account failed to go to the plaintiff, and that he would have gone if the message had been promptly delivered, and that plaintiff was in consequence thereof deprived of his sympathy and consolation during the daughter's illness or at the funeral, you should find for the plaintiff, and award her nominal damages; that is, a small sum, of a few cents, so as to carry the costs against the defendant. But the contract, undertaking, or agreement having been entered into in the state of Mississippi for the transmission and delivery of the message, which, as alleged in the plaintiff's declaration was partly performed in that state, the liability of the defendant for failure to promptly deliver it, or for negligence for delay in its delivery, to the sendee, in Tennessee, is governed by the laws of Mississippi; and under the laws of that state no recovery can be had for mental anguish, merely, and, that being the only injury complained of in this suit, you should award no damages for mental anguish." Counsel for plaintiff then submitted four supplemental instructions which he asked to be given in charge to the jury, which requests were declined by the court. The substance of said prayers was that if defendant company breached its statutory duty, as defined by the laws of Tennessee, after the message was received at Dayton, Tenn., by failing to promptly deliver it, plaintiff could recover such damages as were the direct and proximate result of the company's breach of duty.

The errors assigned are: (1) The court was in error in refusing to strike out the fourth plea filed by defendant; (2) it was error to charge the jury that plaintiff was only entitled to nominal damages; (3) because the laws of Mississippi did not govern and control defendant's liability in this case, under the facts; (4) because the statement of the judge that the jury should find "a small sum, of a few cents," was an infringement of the province of the jury, and equivalent to directing a verdict; (5) the court should have given in charge the four requests submitted by plaintiff's counsel, to the effect that the statutes of Tennessee, and not the laws of Mississippi, determined the defendant's liability, and that, if default occurred in delivery of the message after it reached Dayton, plaintiff should recover such damages as were the legitimate, proximate, and direct result of defendant's default.

The argument in support of the instructions given by the circuit judge to the jury proceeds upon the assumption that the plaintiff's right of action is ex contractu, and based upon an agreement entered into and partly performed in the state of Mississippi. The corollary is then propounded that such a contract must be governed by the laws of Mississippi in existence at that time, and, since the laws of that state exonerate the telegraph company from liability for mental anguish occasioned by the failure to promptly transmit and deliver...