W.U. Tel. Co. v. Sklar

• Citation: 126 F. 295
• Decision Date: 08 December 1903
• Docket Number: 1,194.
• Parties: WESTERN UNION TELEGRAPH CO. v. SKLAR et ux.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

126 F. 295

WESTERN UNION TELEGRAPH CO. v. SKLAR et ux.

No. 1,194.

United States Court of Appeals, Sixth Circuit.

December 8, 1903

Lemuel R. Campbell and James S. Pilcher (George H. Fearons and Rush Taggart, of counsel), for plaintiff in error.

J. P Rains and John T. Allen, for defendants in error.

Before LURTON and SEVERENS, Circuit Judges, and THOMPSON, District judge.

LURTON Circuit Judge.

This was an action by the addressee of a prepaid telegraphic message to recover damages for delay in its delivery. The message was in these words:

St Louis, Mo., Jan. 21, 190-- .

Mrs Mary Sklar or Sklor, 450 N. Spruce Street, Nashville, Tenn Your daughter, Sarah, died this morning at City Hospital, shall I send remains to you, answer, letter on road to you.

Lulu Morrison, 2117 Chestnut St.

The message was prepaid. The declaration charged that the delivery of the message was so unreasonably delayed that the plaintiffs, not knowing the condition of the body, ordered the remains to be interred in St. Louis, without having an opportunity to see the remains of their daughter, and that but for the delay in delivery plaintiffs would have gone to St. Louis, or had the body forwarded to them at Nashville. There were two counts-- one a common-law count based wholly upon an alleged liability of the telegraph company to the plaintiff, as the addressee, for negligence in delivery; the other upon a statute, being sections 1827 and 1828 Shannon's Tennessee Code. The defense was the general issue of not guilty. The jury were, in substance, instructed that, if they should find the defendant had been negligent in the delivery of the message to Mrs. Sklar, and that in consequence of such delay she had been deprived of the opportunity of seeing the remains of her daughter, or having her interred in the place of their residence, she would be entitled to recover for the mental anguish, grief, and disappointment incident entirely to such delay, and which would not have been sustained if the message had been delivered without unreasonable delay. There was a verdict and judgment for the plaintiffs.

There was no averment that the alleged negligence of the telegraph company was either willful or malicious. Neither was there a shred of evidence tending to show any willfulness or malice, and the court instructed the jury that no case existed for punitive damages. There was neither averment nor evidence tending to show any pecuniary loss whatever. Neither was there any averment or proof any bodily injury. The verdict returned was confessedly for damages to the feelings of the plaintiff. The common law gives no redress for mental suffering which is not the inseparable accompaniment of some form of physical injury. Cooley on Torts, 271; Lynch V. Knight, 9 H.L. 577; Wyman v. Leavitt, 71 Me. 227, 36 Am.Rep. 303; Wood's Moyne on Damages, 75; Chase v. W.U. Tel. Co. (C.C.) 44 F. 554, 10 L.R.A. 464; W.U. Tel. Co. v. Wood, 57 F. 471, 6 C.C.A. 432, 451, 21 L.R.A. 706; West v. Tel. Co., 39 Kan. 93, 17 P. 807, 7 Am.St.Rep. 530; W.U. Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L.R.A. 859, 24 Am.St.Rep. 300; W.U.Tel. Co. v. Ferguson, 157 Ind. 37, 60 N.E. 679; Morton v. W.U. Tel. Co., 53 Ohio St. 431, 41 N.E. 689, 32 L.R.A. 735, 53 Am.St.Rep. 648; Chapman v. Tel. Co., 88 Ga. 763, 15 S.E. 901, 17 L.R.A. 430, 30 Am.St.Rep. 183; Connell v. Tel. Co., 116 Mo. 34, 22 S.W. 345, 20 L.R.A. 172, 38 Am.St.Rep. 575; Gahan v. Telegraph Co. (C.C.) 59 F. 433. Many additional authorities are cited in a useful note to the case of Chicago, R.I. & P.R. v. Caulfield, II C.C.A. 552, 556.

The actions for seduction and breach of marriage promise rest upon fictions which are altogether peculiar. In actions for personal injuries mental suffering is inseparably associated with bodily pain as an incident. Compensation therefore includes in such cases both kinds of suffering, the law refusing to separate the one from the other. 'it is impossible to exclude the mental suffering in estimating the extent of personal injury for which compensation is to be awarded. ' Kennon v. Gilmer, 131 U.S. 22, 26, 9 Sup.Ct. 696, 33 L.Ed. 110; Seger v. Barkhamsted, 22 Conn. 298; Canning v. Williamstown, Cush. 452; Chicago, R.I. & P.R. v. Caufield, 63 F. 396, 11 C.C.A. 552. Under the Tennessee statutes, which give right of action to the administrator of one tortiously killed, and authorize a recovery of the damages which the deceased sustained, and in addition those sustained by the widow and next of kin, for whose benefit the right of action is preserved, it is held that damages for the mental suffering of the deceased may be recovered, but that only the pecuniary loss of the widow and the next of kin can be compensated, and that their mental suffering is not to be regarded as an element of damages. Railroad Co. v. Stevens, 9 Heisk. 12. So far, therefore, as the suit was a common-law action, unaffected by any Tennessee statute of controlling influence, it must fail.

The question as to the liability of a telegraph company for damages for the failure to properly transmit or promptly deliver a message is a question of general, and not local, law, and, in the absence of some statute regulating the subject, it is the duty of a court of the United States to decide such general questions independently. W.U. Tel. Co. v. Wood, 57 F. 471, 6 C.C.A. 432, 451, 21 L.R.A. 706; W.U. Tel. Co. v. Cook, 61 F. 624, 9 C.C.A. 680; Felton v. Bullard, 94 F. 781, 37 C.C.A. 1, 4; Railroad v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772; Byrne v. Kansas City R.R. Co., 61 F. 605, 9 C.C.A. 666, 24 L.R.A. 693.

The real question in the case is as to the effect to be given to the Tennessee statute relating to telegraph companies. The only legislation upon the subject is found in sections 1837 and 1828, Shannon's Tennessee Code, which read as follows:

'1837. All other messages, including those received from other telegraph or telephone companies, shall be transmitted in order of their delivery, correctly, and without unreasonable delay, and shall be strictly confidential; provided, however, that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest.

'1838. Any officer or agent of a telegraph or telephone company who willfully violates either of the provisions of the preceding section is guilty of a misdemeanor, and the telegraph or telephone company so violating is liable in damages to the party aggrieved.'

This statute has been under consideration by the Supreme Court of Tennessee in Wadsworth v. W.U. Tel. Co., 86 Tenn. 695, 8 S.W. 574, 6 Am.St.Rep. 864; Railroad v. Griffin, 92 Tenn. 694, 22 S.W. 737; Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S.W. 725. In Wadsworth v. Tel. Co., Supra, the action was by the addressee of an unpaid telegram for damages in the delivery of a message informing her of the illness of a brother. A demurrer had been sustained upon the ground that the declaration stated no ground of action. This judgment was reversed in an opinion by Judge Caldwell, speaking for a majority of the court. The reversal and opinion in part proceeds upon common-law grounds and in part upon a construction and application of the statute above set out. So far as it involves a construction of the statute, the decision is obligatory upon the federal courts, and it will be our duty to follow it, even though we may think the court misconstrued the statute. Forsyth v. Hammond, 166 U.S. 506, 17 Sup.Ct. 665, 41 L.Ed. 1095; Bucher v. Railroad Co., 125 U.S. 555, 8 Sup.Ct. 974, 31, L.Ed. 795; Railroad Co. v. Roberson, 61 F. 592, 9 C.C.A. 646. But so far as the opinion and judgment proceeds upon questions of general, as distinguished from statute, law, this court is bound to exercise its own independent judgment, and is under no obligation to follow a state decision upon a question of general jurisprudence which does not meet its approval. Railroad v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Smith v. Alabama, 124 U.S. 465, 478, 8 Sup.Ct. 564, 31 L.Ed. 508; Railroad v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772; Byrne v. Kansas City Ry. Co., 61 F. 605, 9 C.C.A. 666, 24 L.R.A. 693. In the case last cited, this court, speaking by Taft, Circuit Judge, said:

'The question whether we are bound by the decision of the Supreme Court of Tennessee as to the effect of contributory negligence in statutory actions depends upon the basis given by that court for its conclusion. If the statute is held to be merely declaratory of the common law both in its requirements and in the liability imposed for failure to observe it, and the plea of contributory negligence is allowed only in mitigation of damages, because, in the view of the Supreme Court of Tennessee, that is the only effect it could have in an action for common-law negligence, we conceive that the effect of contributory negligence in such a case would be a question of general common law, with respect to which we might exercise an independent judgment. But if the rule of the state Supreme Court grows out of the peculiar liability imposed by the statute as distinguished from that imposed for negligence at common law, then it is the legitimate effect of a construction of a state statute by the highest tribunal of the state, and we are, of course, bound by it.'

The Tennessee court, in the Wadsworth Case, cited above considered the plaintiff's right of action both under principles of general law and under the statute. The opinion may be summarized as holding: (1) That the telegraph company rested under a legal obligation imposed by the nature of its business to deliver to the addressee promptly any message which they undertook to transmit to her. (2) That its negligence in this respect gave her a right of action to...