Nichols v. Western Union Telegraph Co.

• Decision Date: 02 August 1920
• Docket Number: 2347.
• Citation: 191 P. 573,44 Nev. 148
• Parties: NICHOLS v. WESTERN UNION TELEGRAPH CO.
• Court: Nevada Supreme Court

191 P. 573

44 Nev. 148

NICHOLS v. WESTERN UNION TELEGRAPH CO.

No. 2347.

Supreme Court of Nevada

August 2, 1920

Appeal from District Court, Esmeralda County; J. Emmett Walsh Judge.

Action by Marie A. Nichols against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

H. H Atkinson, of Tonopah, and Beverly L. Hodghead, of San Francisco, Cal., for appellant.

M. A Diskin, of Reno, A. E. Barnes, of Goldfield, and Augustus Tilden, of Reno, for respondent.

COLEMAN C.J.

This is an action instituted by the respondent in the district court of Esmeralda county to recover damages in the sum of $2,900 for mental anguish, alleged to have been suffered because of the failure of the appellant to promptly deliver a death message sent from Cold Spring, N. Y., to the respondent at Goldfield, Nev. Paragraph 3 of the complaint is in the following words and figures:

"That on, to wit, the 17th day of December, 1913 plaintiff's father, one Charles Stonebridge, resided near said town of Cold Spring in the state of New York, and was on said day fatally ill, and on said day died near said Cold Spring, and on the 18th day of December, 1913, plaintiff, by her agent, her brother, one Augustus Stonebridge, made and entered into a contract with defendant at said Cold Spring, by which, in consideration of the sum of, to wit, $1, to it then and there prepaid by plaintiff by her said agent and received and accepted by defendant, defendant promised and agreed to transmit from said Cold Spring to plaintiff at said Goldfield, and deliver to plaintiff at her said dwelling house in Goldfield, with reasonable diligence, a certain telegraphic message in the words and figures following, to wit, 'Cold Spring, Putnam County, N.Y. Dec. 18, 1913. Mrs. Marie A. Nichols, Goldfield, Nev. Father died yesterday. Gus.' "

Among other things, the complaint alleges the negligent and malicious failure of the appellant company to promptly deliver the message mentioned; that respondent suffered great mental anguish because thereof, and that she was damaged because of such negligent and malicious conduct. An answer to the complaint was filed, which consisted of matter negativing the allegation of negligence and malice contained in the complaint. The case was tried before a jury, and verdict rendered for the plaintiff. A motion for a new trial having been denied, the defendant has appealed to this court.

The evidence on the part of the plaintiff showed the message to be interstate in character. Appellant contends that it is the rule of law in the federal courts that no recovery can be had for damages sustained for mental anguish suffered, when unaccompanied by physical injury (Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825, L. R. A. 1917A, 197), and that since the amendment of June 18, 1910, to the Interstate Commerce Act (chapter 309, 36 Stats. 539-545), which operated to extend the federal authority over telegraph companies as to their interstate business and contracts, Congress has occupied the field, and thus excluded all state legislation and state rules of construction as to the right to recover for mental anguish caused by the negligence of telegraph companies in conducting their interstate business. Postal Tel. Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; W. U. T. Co. v. Boegli, 251 U.S. 315, 40 S.Ct. 167, 64 L.Ed. 281.

It is conceded by counsel for respondent that this contention would be sound had the defense urged been pleaded in the answer, it being insisted that it is the law of this state that recovery can be had for mental anguish caused through the negligence of another, and defendant, not having pleaded the act of Congress above mentioned, waived its right to rely upon that point.

While counsel for respondent have presented their views in a very masterful manner, we are unable to accept the idea urged upon us. We take it that the law of a case must control, no matter in what way it is brought to our attention.

It appears from the complaint itself, as is shown by the language quoted therefrom, and from the evidence, that the message is interstate in character. This being true, it becomes our duty to apply the law applicable to that kind of a message; and if under the law applicable thereto the complaint fails to state a cause of action, it is our duty to reverse the judgment, though the point urged is presented for the first time on appeal (Nielsen v. Rebard, 43 Nev. 274, 183 P. 984), accepting the rule declared in St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156. If the federal statute is applicable, the state law is excluded by reason of the supremacy of the former.

In view of the allegations of the complaint and the evidence in the record showing the interstate character of the message, a failure to apply the federal statute would constitute such error as would necessitate a reversal by the Supreme Court of the United States. That court, in Toledo, St. L. & W. R. Co. v. Slavin, 236 U.S. 454, 35 S.Ct. 306, 59 L.Ed. 671, in dealing with a similar question, said:

"But a controlling federal question was necessarily involved. For, when the plaintiff brought suit on the state statute the defendant was entitled to disprove liability under the Ohio act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And if without amendment the case proceeded with the proof showing that the right of the plaintiff and the liability of the

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