Western Union Telegraph Co. v. Smith

• Decision Date: 19 April 1917
• Docket Number: 6 Div. 278
• Citation: 200 Ala. 65,75 So. 393
• Parties: WESTERN UNION TELEGRAPH CO. v. SMITH.
• Court: Alabama Supreme Court

75 So. 393

200 Ala. 65

WESTERN UNION TELEGRAPH CO. v. SMITH.

6 Div. 278

Supreme Court of Alabama

April 19, 1917

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by L.L. Smith against the Western Union Telegraph Company for damages for failure to transmit and deliver a telegram. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

The plaintiff was the sender of the message, and it was sent from Birmingham, Ala., to plaintiff's father in Georgia. It contained the news of the death of the sender's daughter and requested the grandparents to come. Pleas 3, 5, 6, 7, and 8 set up provision 1 written upon the back of telegraph blanks, and aver as well that by the act of Congress approved June 18, 1910 (36 Stat. 539), Congress assumed charge of the field of interstate communication by telegraph, and conferred upon the Interstate Commerce Commission. Pleas numbered 5, 6 7, and 8 set out specifically a portion of the act applying to unrepeated and other classification of messages. Plea 13 relies upon the third provision of the sending contract. Plea 14 relies upon the sixth clause of the sending contract. Demurrers were sustained to all the pleas except the thirteenth.

Forney Johnston and W.R.C. Cocke, both of Birmingham, and George H Fearons, of New York City, for appellant.

Hugo L Black, of Birmingham, for appellee.

McCLELLAN J.

This is an action for damages instituted by appellee against appellant, for the failure to transmit and deliver a telegraphic message from Birmingham, Ala., to Raleigh, Ga the plaintiff being the sender of the message. In rulings on the pleading adverse to defendant, including the overruling of a motion to strike the claim for damages for mental distress from the complaint, and in refusing instructions requested by the defendant, the trial court committed errors according to the apt authority afforded by the recent decision delivered here in Western Union Telegraph Co. v. Hawkins, 73 So. 973, where it was held that the assertion by the United States of its powers over interstate commerce of this character, through the amending act of Congress of June 18, 1910, c. 309, § 7, 36 U.S. Stat. at Large, p. 539 (Comp.Stat. of U.S.1916, § 8563), in connection with the Carmack Amendment of the Interstate Commerce Act (34 U.S.Stat. at Large 584, Comp.Stat.1916, §§ 8604a, 8604aa), effected to supersede state laws, including rules established by decision of the state court, bearing upon the subject of liability with respect to this particular subject of interstate commerce, and, at the...