W.U. Tel. Co. v. Taylor

• Decision Date: 14 April 1924
• Citation: 87 Fla. 398,100 So. 163
• Parties: WESTERN UNION TELEGRAPH CO. v. TAYLOR et al.
• Court: Florida Supreme Court

100 So. 163

87 Fla. 398

WESTERN UNION TELEGRAPH CO. v. TAYLOR et al.

Florida Supreme Court

April 14, 1924

Rehearing Denied May 15, 1924.

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Action by Myrtle H. Taylor and husband against the Western Union Telegraph Company, a corporation. Judgment for plaintiffs and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Damages proximately resulting from negligent failure to deliver messages generally recoverable. Generally, telegraph companies are liable for such damages as naturally and proximately result from their negligent failure to promptly transmit and deliver messages received by them for transmission and delivery.

Mental anguish not element of damage before enactment of statute. Prior to the enactment of the statute authorizing it (section 4388, Rev. Gen. St. 1920), mental anguish resulting from the negligent failure to promptly transmit and deliver a telegraph message received for transmission and delivery was not a recoverable element of damage.

Liability imposed by statute for mental anguish. The statute (section 4388, Rev. Gen. St. 1920) imposes liability for 'mental anguish, distress or feeling, physical and mental pains and suffering resulting from the negligent failure to promptly transmit or promptly deliver' telegrams, and to that extent enlarges and extends the scope of liability in such cases.

Damages for mental anguish recoverable where contemplated as probable and proximate result of negligence and company had notice such damages would likely result. In order for plaintiff to recover for mental anguish, the damage alleged and proved must or should have been contemplated as a probable and proximate result of defendant's negligence. And there can be no recovery on this ground unless the telegraph company had notice, or was put upon inquiry from the language of the telegram gram or otherwise, that by reason of its negligence in the prompt transmission and delivery of the telegram such damage would be likely to result.

Company must have had notice of injurious consequence as natural probable result of negligence. In an action for damages for injury of any character caused by the negligence of a telegraph company in the transmission or delivery of messages properly delivered to it for transmission and delivery, the plaintiff should show that the telegraph company, either from the character of the message or from information imparted to its agent, had such notice as that the injurious consequences alleged should have been contemplated as natural probable results of the negligence complained of, and that such injurious consequences resulted proximately from such negligence. Hidreth v. Western Union Tel. Co., 56 Fla. 387, 47 So. 820.

Company need not have contemplated particular injury. In an action for damages resulting from the negligent failure to promptly transmit and deliver a telegraph message received for transmission and delivery, it is not essential to recovery that the particular injury sustained was contemplated, but the company is liable if the injury sustained should have been contemplated as a probable and proximate result of its negligence.

Sender held only entitled to damages caused by having to travel at night on day coach as result of negligent failure to deliver telegram. The following message was received by the defendant company for transmission and delivery: 'Perry Fla 7/27/1921. To: Mrs. C. F. Taylor, % Spring Cottage Hotel Fort Pierce Fla. Will be in Jacksonville and meet you all Saturday. You leave there Friday night. Have Fred secure sleeper for you all. Get ten dollars from your mother for sleeper. I will mail it back to her. Fred.' The message was not delivered. In view of its contents, the plaintiff sendee is only entitled under the statute to recover damages for 'mental anguish, distress of feeling, physical and mental pains and suffering' caused by having to travel, with others impliedly with her, at night on a day coach instead of a Pullman car; such mode of travel being a proximate result of the defendant's 'negligent failure to promptly deliver' the telegram.

COUNSEL

Myers & Myers, of Tallahassee, for plaintiff in error.

W. B. Davis, of Perry, for defendants in error.

OPINION

WEST, J.

This action is to recover for mental anguish and physical pain and sickness alleged to have been suffered by plaintiff Myrtle H Taylor, because of the alleged negligent failure of defendant to promptly transmit and deliver to her a telegram received by it for transmission and delivery. There was a verdict of $650 for plaintiffs, addressee and sender of the telegram. Motion for new trial was made and granted unless a remittutur of $250 was made. Remittitur was entered, and judgment for plaintiff for $400 was awarded. Defendant took writ of error.

The telegram is as follows:

'Perry, Fla. 7/27/1921. To:

Mrs. C. F. Taylor, % Spring Cottage Hotel, Fort Pierce, Fla. Will be in Jacksonville and meet you all Saturday. You leave there Friday night. Have Fred secure sleeper for you all. Get ten dollars from your mother for sleeper. I will mail it back to her. Fred.'

It is alleged that the defendant, Western Union Telegraph Company, 'carelessly and negligently failed, refused and neglected to transmit and deliver said message and telegram to the said' plaintiff, and that siad message was never delivered; that prior to the time of the delivery of the message to be transmitted by the defendant, the sender had written the addressee 'advising her that he would wire her as to the time and manner of coming from Ft. Pierce to Jacksonville, Fla., and on to Perry, Fla.,' and that 'because of the failure to deliver the said message the said Myrtle H. Taylor suffered mental pain and anguish, * * * and not having gotten the said message the said Myrtle H. Taylor did not know what to do about the trip home to Perry, Fla.'; that she left Ft. Pierce for Perry, Fla., on Friday, the 29th day of July, 1921, but that 'because of not having gotten the message the said Myrtle H. Taylor did not take a sleeper and did not ride on a sleeper from Ft. Pierce to Jacksonville, but rode on a day coach in the nighttime a part of the way with these children'; 'that the said Myrtle H. Taylor would have gotten the said $10 from her mother * * * if she had known it would be all right with her husband, but as she had not received any message or any telegram the said Myrtle H. Taylor did not know what to do or what course to pursue with reference to the trip;' 'that this mental suffering and pain and agony of mind suffered by the said Myrtle H. Taylor, because of failing to get this telegram' caused her to become sick and enfeebled and to suffer mental and physical pain, anguish, and worry, and to remain sick and enfeebled for a long period of time.

There was a plea of not guilty and a special plea, the averments of which it is not necessary to set forth.

The statute upon which the action is predicated is section 4388, Revised General Statutes, which for convenience we insert:

'4388. Recovery for Mental Anguish and Physical Suffering; Burden of Proof.--That persons, firms, and corporations engaged in the business of transmitting telegrams into or out of this state, or from one point to another point in this state, shall be liable in damages to the sender and addressee, jointly or severally, of any telegram received for transmission and delivery, whether such telegram is received for transmission into or out of this state, or from one point to another point within this state, for mental anguish, distress or feeling, physical and mental pains and suffering resulting from the negligent failure to promptly transmit or promptly deliver such telegram, or because of the negligent failure to correctly transmit and deliver such telegram. And in all cases brought under this act the burden of proof shall be upon the defendant to show to the satisfaction of the jury, or if there be no jury, to the satisfaction of the judge trying the case, by a preponderance of the evidence, that such defendant was free from fault in and about the transmission and delivery of any telegram received for transmission and delivery.'

It is contended by plaintiff in error, and this contention is admitted to be in the main correct, that there are three distinct elements comprising the damages alleged, namely:...