W.U. Tel. Co. v. Mellon

• Decision Date: 21 January 1896
• Citation: 33 S.W. 725,96 Tenn. 66
• Parties: WESTERN UNION TEL. CO. v. MELLON.
• Court: Tennessee Supreme Court

33 S.W. 725

96 Tenn. 66

WESTERN UNION TEL. CO. v. MELLON.

Supreme Court of Tennessee.

January 21, 1896

Appeal from circuit court, Montgomer county; A. H. Munford, Judge.

Action by John Mellon against the Western Union Telegraph Company for damages for failing to deliver a telegraph message. Plaintiff had judgment, and defendant appeals. Reversed.

Lemuel R. Campbell and Burney & Gholson, for plaintiff.

Leech & Savage, for defendant.

McALISTER J.

The plaintiff below recovered a judgment in the circuit court of Montgomery county against the defendant company for the sum of $500, damages for mental pain and anguish alleged to have been sustained by him in consequence of the negligence of the company in failing to deliver a telegram. The company appealed, and has assigned errors. The facts out of which the present controversy has arisen may be briefly stated. The plaintiff below, John Mellon, resided in Montgomery county about four miles from Clarksville. He had a son, Maxie Mellon, who lived at Duncansville, in the state of Texas. On the 16th July, 1893, this son was very ill of typhoid fever and caused the following telegram to be sent to Frank Hamlet residing at Clarksville, Tenn., viz.: "Tell John Mellon Maxie is very sick. Come, if possible. [Signed] Jim Morrison." It will be remarked, in passing, that John Melon, the plaintiff in this action, was neither the sender nor the addressee, but yet the beneficiary, of the message as is disclosed upon its face. This telegram, it appears, was never delivered, and this nondelivery is made the basis of the present action. Plaintiff claims that he did not know of the condition of his son until some days afterwards, when he was notified that his son was dying, and, when he reached Duncansville, his son had died, and was buried. Defendant demurred to this declaration, upon two grounds, viz.: First. It shows upon its face that there was no contract by defendant to deliver said message to plaintiff, or to his agent, or to any one who was under any legal obligation to deliver same to him. Second. It shows on its face that said message was addressed to Frank Hamlet, and it nowhere shows any obligation on part of Hamlet to deliver same to plaintiff. The demurrer was overruled, and this is assigned as error.

It has been held in this state that, while telegraph companies are neither common carriers nor bailees nor insurers, considerations of public policy demand that they shall be held responsible for a very high degree of diligence. Marr v. Telegraph Co., 85 Tenn. 529, 3 S.W. 496. Our statute imposes upon telegraph companies the duty of transmitting messages for the public without discrimination, and without unreasonable delay. The statute provides, viz.: "All other messages including those received from other telegraph companies shall be transmitted in the order of their delivery, correctly and without unreasonable delay and shall be kept strictly confidential." Mill. & V. Code, § 1542. "Any officer or agent of a telegraph company who wilfully violates either of the provisions of the preceding section is guilty of a misdemeanor and he and the telegraph company or proprietor are also liable in damages to the party aggrieved." Id. § 1543. It was held by this court in Wadsworth v. Telegraph Co., 86 Tenn, 695, 8 S.W. 574, that the party to whom a telegram intended for his personal benefit is addressed has a right of action for damages against the telegraph company for negligent delivery in its transmission and delivery. It was further held that the company, having breached its legal duty, was liable at least for nominal damages, and, in addition, was further liable for such sum as would "reasonably compensate plaintiff for the grief, disappointment, or other injury to her feelings, occasioned by such default of the company." See, also, Railroad Co. v. Griffin, 92 Tenn. 694, 22 S.W. 737. It will be perceived that the present action is prosecuted neither by the sender nor sendee of the telegram, but by the person who appears upon its face to be the real beneficiary. It is insisted by counsel for the company that this is an action for the breach of contract, and, no privity of contract being shown to exist between plaintiff and the company, the action cannot be maintained. We cannot concur with counsel that the action is exclusively upon the contract. While it may be conceded that the second count of the declaration is distinctively ex contractu, the first count proceeds upon the facts of the case, and seeks to recover damages for the breach of a legal duty. "The true view," says Mr. Thompson, "which seems to sustain the right of action in the receiver of the message or in the person addressed where it is not delivered, is one which elevates the question above the plane of mere privity of contract, and places it where it belongs,-upon the public duty which the telegraph company owes to any person beneficially interested in the message, whether the sender, or his principal where he is agent, or the receiver, or his principal where he is agent. In Texas it is reasoned with manifest good sense that the question as to who may maintain such an action does not depend upon the payment of the fee, or upon the question whether the sender had been previously constituted an agent for that purpose by the party to whom the dispatch is sent, but upon the question who, in fact, was to be served, and who is damaged." Thomp. Elec. § 427; Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857. In the case of Telegraph Co. v. Reynolds, 77 Va. 173, it was said: "It cannot, however, be claimed that the obligation of a telegraph company to send a message grows entirely out of the contract with the sender in Virginia. In this state the obligation rests upon them for the correct transmission and faithful delivery of messages under the statute, as we have seen, as it does upon innkeepers, common carriers, and the like upon whom legal duties rest, resulting from their occupation and profession, and who owe a duty to the public irrespective of their engagements in particular instances. In Virginia a telegraph company cannot refuse to make the contract with the sender without violating a penal statute. And if they are under

obligations, which they cannot avoid, to send every dispatch which is offered, how can their obligation be said to rest upon the contract alone? Their obligations under the laws of this state are such that they are compelled to make the contract; and when it is made, by receiving the message and the price for its transmission, according to their own regulations, they are under obligations to send it, both under their contract to send it and under the law which makes it their duty to send 24." Haywood v. McCracken, 2 How. 608. In Indiana there is a statute providing that telegraph companies shall be liable for special damages occasioned by failure or negligence of their operators or servants in receiving, copying, transmitting, or delivering dispatches. It was held by the supreme court of Indiana that, under this statute, a telegraph company was liable for special damages sustained, although the party injured was neither the sender nor addressee of the message. Telegraph Co. v. McKibben, 114 Ind. 511, 14 N.E. 894; Telegraph Co. v. Fenton, 52 Ind. 1. So we think that, under our statute allowing a right of action to the party aggrieved, it is not necessary that any contractual relation should exist, but the company is liable for a breach of its statutory duty independent of any contract. The breach of the statute in failing to deliver the message entitled the party aggrieved to, at least, nominal damages, to which may be added compensatory or exemplary damages, in the discretion of the jury. The party aggrieved...