Western Union Tel. Co v. King

• Decision Date: 24 November 1939
• Docket Number: No. 27761.,27761.
• Citation: Western Union Tel. Co v. King, 61 Ga.App. 537, 6 S.E.2d 368 (Ga. App. 1939)
• Parties: WESTERN UNION TELEGRAPH CO. v. KING.
• Court: Georgia Court of Appeals

6 S.E.2d 368

WESTERN UNION TELEGRAPH CO.

v.KING.

No. 27761.

Court of Appeals of Georgia, Division No. 2.

Nov. 24, 1939.

Judgment Adhered to On Rehearing Dec. 20, 1939.

Syllabus by the Court.

The court erred in overruling the motion for new trial.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Action by H. S. King against the Western Union Telegraph Company for nominal damages for failure to deliver a telegram. To review an adverse judgment, defendant brings error. The case was transferred from the Supreme Court, 2 S.E.2d 909.

Judgment reversed.

Heyman & Heyman, of Atlanta, Wright & Willingham, of Rome, and Francis Raymond Stark, of New York City, for plaintiff in error.

Lanham & Parker, of Rome, for defendant in error.

FELTON, Judge.

H. S. King sued the Western Union Telegraph Company for nominal damages for the failure to deliver a telegram deposited with it at Rome, Ga, addressed to his daughter in Milwaukee, Wisconsin, the substance of which was as follows: "Your mother died today. Funeral day after tomorrow. Wire whether or not youcan come." The message was charged to plaintiff's account and was not dispatched from the Rome, Ga, office. The plaintiff alleged that by reason of the failure to dispatch the telegram he was deprived of the companionship, consolation and sympathy of his daughter during the dark hours immediately after his wife's death and preceding and during the funeral and burial. The jury awarded $250 nominal damages. The defendant's motion for new trial was overruled, and it excepted.

1. The transaction was one involving interstate commerce even though the telegram was not transmitted across state lines. Western Union Telegraph Co. v. Czizek, 264 U.S. 281, 44 S.Ct. 328, 68 L.Ed. 682; Postal Telegraph-Cable Co. v. Eubanks, 121 Miss. 530, 83 So. 678; Ward v. Western Union Telegraph Co, 226 Mo.App. 752, 46 S.W.2d 268.

2. Congress has so far occupied the entire field of interstate business of telegraph companies as to exclude state action on the subjects not expressly excepted. 48 Stat.L. 1064, 47 U.S.C.A. § 151 et seq.; Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co, 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; Western Union Telegraph Co. v. Boegli, 251 U.S. 315, 40 S.Ct. 167, 64 L.Ed. 281; Western Union Telegraph Co. v. Esteve Brothers & Co, 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094; Western Union Telegraph Co. v. Priester. 276 U.S. 252, 48 S.Ct. 234, 72 L.Ed. 555; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457; Western Union Telegraph Co. v. Speight, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104; Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825, L.R.A. 1917A, 197. The purpose of the occupation of this field of commerce was to insure uniformity of regulation and under the above authorities and numerous others which could be cited, to authorize the application of a state rule of nominal damages inconsistent with the rule applied by the Federal courts would have the effect of retaining within the power of the state the right to provide a penalty or damages for the failure to perform a duty the power to punish which it was the intention of congress to assume exclusively. If the Georgia rule of nominal damages permits the recovery of more than a nominal amount as nominal damages, such as one penny, six cents or a dollar, it is contrary to what seems to be the rule as applied by the Federal courts and it was error for the court to apply other than the Federal rule in this case. The award of damages by way of a different rule as to nominal damages would be just as objectionable and create or tend to create as much lack of uniformity in the regulation of interstate commerce as a statute which had a like effect. Such a statute is ineffective as shown in the Speight case, supra, and others. While the Supreme Court of the United States has made no authoritative ruling on the question of what it adjudges nominal damages to be we are following as persuasive authority the rulings of the Federal courts which have applied the rule. See Atlantic Oil Producing Co. v. Masterson, 5 Cir, 30 F.2d 481; United States v. Young, C.C, 44 F. 168 (3); Hemingway Mfg. Co. v. Council Bluffs Canning Co, C.C, 62 F. 897, (900); United States v. Patrick, 8 Cir, 73 F. 800.

The court erred in overruling the motion for new trial. The judgment of reversal is adhered to on, rehearing and the foregoing opinion is substituted for the original opinion.

Judgment reversed.

STEPHENS, P. J, concurs.

SUTTON, J, concurs specially.

SUTTON, Judge (concurring specially).

The plaintiff sued the defendant for nominal damages only for its failure to transmit a telegram from Rome, Georgia, to his daughter in Milwaukee, Wisconsin. The plaintiff in error contends that the telegram was one involving interstate commerce and is controlled by the Federal rule with respect to nominal damages. The defendant in error contends that the Georgia rule is applicable to the present case, and that the verdict for $250 nominal damages can and should be upheld under the Georgia law. The act of Congress referred to in the majority opinion does not deal with the question of nominal damages, and it seems that the United States Supreme Court has not decided any case involving the question as to the amount for which a verdict for nominal damages can be sustained. Whether dependent on the Federal rule or the Georgia law, I am of the opinion that the verdict in the present case for $250 nominal damages can not be sustained.

" 'Nominal damages' are a small and trivial sum awarded for a technical injury due to a violation of some legal right, and as a consequence of which some damages must be awarded to determine the right. 'Nominal damages' arise by implication of law for the violation of the rights of another from which injury arises, but which is either incapable of ascertainment, or the value of which the proof wholly fails to show. [Citing.]" 2 Words & Phrases, Fourth Series, page 800. See also 17 C.J. 714, § 34. "It has been said that while the law implies damages from the violation of every right, without proof of actual detriment, it implies the smallest appreciable quantity. One dollar is the amount usually adjudged where only nominal damages are allowed. A considerable amount--as, for example, $100 or $200--is a substantial recovery, and does not come within the definition of nominal damages; hence, a finding of nominal damages will not warrant a judgment for such amount." 15 Am.Jur. 292, § 5. Similar definitions of nominal damages from many jurisdictions could be given. Under the Georgia rule it seems that there are two classes of cases wherein nominal damages may be awarded, one being where a right of the plaintiff has been violated or invaded, but where the evidence fails to show that the plaintiff has sustained any actual loss, and the other being where the plaintiff's right has been violated or invaded, followed by actual loss to the plaintiff, but where under the evidence the damages can not be established with definiteness. The present case falls within the first class, if the Georgia rule is applicable, as nominal damages only are sued for, and a verdict for $250 nominal damages could not be upheld. It was long ago held in Ransone v. Christian, 56 Ga. 351 (6): "Nominal damages mean in law some small amount sufficient to cover and carry the costs, and when requested in writing so to charge the jury, the court should do so, where any view of the facts proven justify a charge upon the subject. [Italics mine.]"

In Sellers v. Mann, 113 Ga. 643, 39 S.E. 11, the Supreme Court said that "the term 'nominal damages, ' like 'exemplary damages, ' is purely relative, and carries with it no suggestion of certainty as to amount, " but that was in a case where the jury had returned a verdict for "nominal damages" without naming any amount, and the question presented was whether or not it was a legal verdict sufficiently definite to be upheld. The court reversed the case, holding that the verdict was too uncertain. The above quoted language could not reasonably be said to represent the view of the court that a substantial amount could be awarded by a jury in a case where no. actual loss was shown, it appearing from the record in that case that the plaintiffs contended that they had been damaged by the alleged breach of a contract by the...