W.U. Tel. Co. v. Potts

• Decision Date: 07 November 1908
• Citation: 113 S.W. 789,120 Tenn. 37
• Parties: WESTERN UNION TELEGRAPH CO. v. POTTS et ux.
• Court: Tennessee Supreme Court

113 S.W. 789

120 Tenn. 37

WESTERN UNION TELEGRAPH CO. v. POTTS et ux.

Supreme Court of Tennessee.

November 7, 1908

Appeal from Circuit Court, Hamilton County; M. M. Allison, Judge.

Action by A. B. Potts and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

Shields Cates & Mountcastle and Brown & Spurlock, for appellant.

Murray & Murray, for appellees.

NEIL J.

Action to recover damages for failure to promptly deliver a telegram, recovery in the court below for $500, and an appeal in error by the company.

The facts are as follows:

The mother of Mrs. Clara Potts, of Chattanooga, Tenn., was lying at the point of death near Springville, Ala. Mrs. Potts requested her brother, W. D. Self, to telegraph news of her mother's death to Chattanooga, when it should occur, in time to enable her to be present at the funeral. The arrangement between them was that the message was to be sent to her husband, A. B. Potts, at his place of business, and he promised his wife that on receiving such a message he would promptly deliver it to her. Mr. Self complied with his promise by handing to plaintiff in error for transmission the following message:

"Springville, Ala., 2/14, 1905.

"A B. Potts, c/o Master Mechanic, C. S. Shops, Chattanooga Tenn.

"Mother died this morning, seven o'clock; come to Springville, train one, tonight.

"W. D. Self."

The message reached Chattanooga at 2:48 p. m. on the same day, and could have been delivered in ample time to enable Mrs. Potts to leave for Springville on the 6:30 p. m. train. If she had received the message in time, she could and would have reached Springville in ample time for the funeral. The company, however, negligently failed to deliver the message until after the 6:30 train had left. In consequence of this negligence Mrs. Potts could not leave for Springville until the next morning. She left on the earliest train possible after the delivery of the message to her husband, but was able to reach her mother's home only after the interment had taken place.

Mrs. Potts and her husband brought suit to recover damages on this state of facts, with the result already stated.

The company had no further knowledge or notice of the relations of the parties, or the probable consequences of a negligent failure to deliver the message, than such as was furnished by the face of the message itself.

The company moved for peremptory instructions in the court below, which was refused, and it insists here that the court erred in denying the motion.

The plaintiff in error insists that the facts stated do not make out a case of liability against it, since, as it claims, Mrs. Potts was neither sender nor sendee of the message, and there was nothing on its face indicating that she had any interest in it. Hence it is said the consequences to Mrs. Potts, in the way of mental suffering or otherwise, or a failure on the part of the company to deliver the message, could not have been within reasonable contemplation.

At a former term of the court the judgment of the circuit court was affirmed, and a petition for rehearing was thereafter filed by the telegraph company, and was held under advisement.

It is not necessary to discuss the right to damages for mental anguish arising from delay in the delivery of a social telegram. That question has long been settled in this state. Wadsworth v. Telegraph Company., 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864; Railroad v. Griffin, 92 Tenn. 694, 22 S.W. 737; Telegraph Company v. Mellon, 96 Tenn. 66, 33 S.W. 725; Telegraph Company v. Robinson, 97 Tenn. 638, 37 S.W. 545, 34 L. R. A. 431; Telegraph Co., v. Frith, 105 Tenn. 167, 58 S.W. 118; Gray v. Telegraph Co., 108 Tenn. 39, 64 S.W. 1063, 56 L. R. A. 301, 91 Am. St. Rep. 706; Telephone Co. v. Brown, 104 Tenn. 56, 55 S.W. 155. The right to sue may be in either the sender or the sendee, and may be either on the contract or for breach of the statutory duty to promptly deliver. If on the contract, the right of the sendee is based on the proposition that the contract must be treated as made between the sender and the company for the benefit of the sendee; if under the statute, the sendee sues as the "aggrieved party." Manier & Co. v. Telegraph Co., 94 Tenn. 442, 448, 29 S.W. 732; Gray v. Telegraph Co., 108 Tenn. 39, 64 S.W. 1063, 56 L. R. A. 301, 91 Am. St. Rep. 706; Telegraph Co. v. Mellon, supra. The ground of the action, if on the contract, is for the breach thereof; if under the statute, it is for the failure to perform the duty imposed, and in effect the action is equivalent to one for negligence. Gray v. Telegraph Co., 108 Tenn. 39, 49, 50, 64 S.W. 1063, 56 L. R. A. 301, 91 Am. St. Rep. 706; Wadsworth v. Telegraph Co., supra; Jones v. Telegraph Co., 101 Tenn. 442, 47 S.W. 699; Telegraph Co. v. Mellon, supra. The measure of damages, whether the suit be on the contract or in tort, is, in this class of cases substantially the same, viz.: (1) If there has been a violation of the contract, or a breach of duty on the part of the company, the aggrieved party is entitled to recover, in any event, nominal damages. Wadsworth v. Telegraph Co., supra; Jones v. Telegraph Co., supra; Telegraph Co. v. Mellon, supra; Gray v. Telegraph Co., supra. (2) Such damages as may be fairly and reasonably considered as arising naturally, in the usual course of things, from the breach of the contract or the violation of public duty, or such damages as may be reasonably supposed to have been within the contemplation of both parties, at the time they made the contract, as the probable result of a breach of it. Wadsworth v. Telegraph Co., supra; Railroad v. Griffin, supra; Telegraph Co. v. Reid, 120 Ky. 231, 85 S.W. 1171, 70 L. R. A. 289; McPeek v. Telegraph Co., 107 Iowa, 356, 78 N.W. 63, 43 L. R. A. 214, 70 Am. St. Rep. 205; 27 Am. & Eng. Enc. Law (2d Ed.) p. 1059. (3) In a proper case, punitive damages. Telegraph Co. v. Frith, 105 Tenn. 167, 58 S.W. 118; Telegraph Co. v. Mellon, supra. The company may learn the grounds on which it may base an estimate of, or anticipate, the damages that may result or naturally flow from a failure to properly deliver the message, either from facts communicated to its agents dehors the message or from the face of the message itself. Pepper v. Telegraph Co., 87 Tenn. 554, 558, 11 S.W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; Telegraph Co. v. Frith, supra; Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Postal Telegraph Co. v. Lathrop, 131 Ill. 575, 23 N.E. 583, 7 L. R. A. 474, 19 Am. St. Rep. 55; Telegraph Co. v. Feegles, 75 Tex. 537, 12 S.W. 860; Reese v. Telegraph Co., 123 Ind. 294, 24 N.E. 163, 7 L. R. A. 583; Telegraph Co. v. Swearingin,

97 Tex. 293, 78 S.W. 491, 104 Am. St. Rep. 876; Bright v. Telegraph Co., 132 N.C. 317, 43 S.E. 841; Davis v. Telegraph Co., 107 Ky. 527, 54 S.W. 849, 92 Am. St. Rep. 371; Telegraph Co. v. Edmondson, 91 Tex. 206, 42 S.W. 549.

It is not necessary to a recovery that the suit should be brought either by the person whose name appears in the telegram as the sender, or by the one whose name appears as the sendee. It may be brought by one whose name appears upon the face of the message as the beneficiary thereof, though neither the sender nor the sendee. Telegraph Co. v. Mellon, supra, Whitehill v. Telegraph Co. (C. C.) 136 F. 499, 500. Or it may be brought by the undisclosed principal of the sender. Milliken v. Telegraph Co., 110 N.Y. 403, 18 N.E. 251, 1 L. R. A. 281; Leonard v. Telegraph Co., 41 N.Y. 544, 1 Am. Rep. 446, 454; Harkness v. Telegraph Co., 73 Iowa, 190, 34 N.W. 811, 5 Am. St. Rep. 672; Telegraph Co. v. Broesche, 72 Tex. 654, 10 S.W. 734, 13 Am. St. Rep. 843.

It would seem to follow, from the principles above stated, that the undisclosed principal of the sendee might also bring the action; but the contrary has been held in two cases. Lee v. Western Union Telegraph Co., 51 Mo.App. 375; Western Union Telegraph Co. v. Schriver, 141 F. 538, 72 C. C. A. 596, 4 L. R. A. (N. S.) 678. And there seems to be a general disinclination to extend the right of recovery for mental anguish, as distinguished from physical injury, beyond the point already reached by the authorities. However, it seems to be recognized that, where the person interested in the telegram is the undisclosed principal of both the sender and the sendee, he may recover. Leonard v. Telegraph Co., supra; Milliken v. Telegraph Co., supra.

This is the case we have before the court now for consideration. Both the sender and the sendee were the agents of the undisclosed principal, Mrs. Clara Potts.

The petition to rehear and the accompanying brief, so far as they need be noticed, make the point that the court, in the former opinion, erred in respect of the measure of damages. It is conceded that the undisclosed principal of the sender of a telegram could sue for breach of the contract; but it is said that he would have to adopt the contract as he found it, that he would be entitled to recover only such damages as the apparent sender could recover, and that this would necessarily exclude damages for the mental anguish of the undisclosed principal; that the telegraph company and the apparent sender, together with the language of the message would be the persons and the matter for consideration; that the company would be presumed to have in contemplation the language, purport, and effect of the message, and the relation of the apparent sender thereto, and would be liable to the apparent sender, in case of a breach of duty in respect of the message, for all such damages as might be considered as arising naturally, in the ordinary course of things, from such breach of contract or violation of duty, but this could not...