Western Union Telegraph Co. v. Hill

• Decision Date: 13 May 1909
• Citation: 50 So. 248,163 Ala. 18
• Parties: WESTERN UNION TELEGRAPH CO. v. HILL.
• Court: Alabama Supreme Court

50 So. 248

163 Ala. 18

WESTERN UNION TELEGRAPH CO. v. HILL.

Supreme Court of Alabama

May 13, 1909

Rehearing Denied June 30, 1909.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by W. W. Hill against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

George H. Fearons, Campbell & Walker, and Rushton & Coleman, for appellant.

S. H Dent, Jr., for appellee.

MAYFIELD J.

This was an action by appellee against appellant to recover damages for failure to deliver within a reasonable time a telegram, and that, by reason of such failure on the part of the telegraph company, the plaintiff did not receive the message in time to reach Gainesville, in the state of Georgia, so as to be present with his wife and in time to prepare the body of their child for removal and interment and claims as actual damages 40 cents paid to the defendant company for sending the message and for mental pain and anguish suffered by the plaintiff in consequence thereof. To this complaint the defendant filed pleas, one setting up the general issue, and special plea No. 2, which was in words and figures as follows: "(2) For further answer to said complaint, this defendant says: That the contract for transmission and delivery of the telegram, for the breach of which this action was brought, was not made in the state of Alabama, but was entered into between the plaintiff's agent and the defendant in the state of Georgia, and was to be partly performed in the state of Georgia; that said contract is to be construed and governed according to the laws of the state of Georgia; that under the laws of the state of Georgia, as construed by its highest court, plaintiff cannot recover the special damages for mental pain and anguish claimed in each count of the complaint." To which special plea the plaintiff demurred, and the court sustained the demurrer. The trial was had upon the general issue, and resulted in a verdict for the plaintiff for $1,100.40. The defendant subsequently made a motion to set aside the verdict, because it was contrary to the evidence, because the verdict was excessive, and because it was a quotient verdict. On hearing this motion, upon the affidavit made in connection therewith, the court overruled the motion, and the defendant then and there duly excepted.

The facts as shown by the record are substantially as follows: The wife of plaintiff and his oldest child, 3 1/2 years old, and the one who died, who was about 21 or 22 months old, were at Gainesville, Ga., during the summer of 1906. That the plaintiff was there a while and left about a week before the death of the child, and instructed his wife that, if any change took place in the condition of the child, to wire or phone him at once in order that he might come back. At about 6:30 o'clock Sunday morning, on July 15, 1906, the landlady, Mrs. Bell, with whom Mrs. Hill was stopping, telephoned to the defendant company's office at Gainesville asking the agent to take over the telephone for transmission a telegram reading as follows: "Gainesville, Ga., 7-15-1906. W. W. Hill, 643 South Lawrence Street, Montgomery. Come on first train. Baby dying. [Signed] Mrs. W. W. Hill." That the operator got up, dressed, and went to the office of the telegraph company and sent the message at 6:43 a. m., Eastern time, to Atlanta, Ga. That the amount paid for the message was 40 cents. That between 6 and 7 a. m. Central time the same morning another agent of the defendant company was on duty at the defendant's office at Montgomery for the purpose of testing wires and to send out linemen, etc. That at 6:15 a. m. Central he got a call from the chief clerk at Atlanta. That the chief clerk at Atlanta said to him, "Take this rush message." That he then took the message over the wire, wrote it out, and hung it on the file where the telegrams always hung and where the delivery clerk got them. That there was no one in the office at the time but him and no messenger boys. That the office hours of defendant in Montgomery in week days were 7 o'clock in the morning and on Sundays 8 o'clock. That the business was conducted at Montgomery as follows: The operators took the message over the wires, and that check boys came around and checked up the messages and carried them to the messenger clerk, and that he fixed them up and sent them out by the messenger boys. That the office was not open for business on Sunday mornings until 8 o'clock. That the agent in the office who received this message had only been in Montgomery about 10 days and did not know plaintiff's residence. That it also appeared that there was a telephone in the office of the Western Union Telegraph office, and that Mr. Hill also had a telephone at his residence. Plaintiff, Mr. Hill, got a message over the long distance telephone from Selma about 8 o'clock informing him of the dangerous condition of his child, and that he left his house at about 8:20 and drove to the depot. That a messenger boy was started with this message at about 8:20. The boy, not finding him at home, followed him to the depot and delivered the message at 8:50. That a through train left Montgomery at 6:55 a. m., which went through Atlanta and by Gainesville, reaching Gainesville at 2 o'clock. That a local train left Montgomery for Atlanta at 9:15. Mr. Hill went on this train to Atlanta, wiring his wife to come to Atlanta. He met his wife in Atlanta with the corpse of the child. The train he went on made no connection at Atlanta. He reached Atlanta about 2 or 3 o'clock in the afternoon. That plaintiff telephoned from Atlanta to Gainesville about making arrangements for bringing the child home. That there was no relative of his wife at Gainesville at the time. That his wife reached Atlanta about 6 o'clock in the afternoon. That he was in Atlanta by himself from 2 o'clock until 6 o'clock. The child died about 8 o'clock in the morning of the 15th of July.

Various errors are assigned: First, to the sustaining of the demurrers to defendant's special plea No. 2 and the exclusion of the decision of the Supreme Court of Georgia in the case of Chapman v. Western Un. Tel. Co., 88 Ga. 763, 15 S.E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183, and to the exclusion of certain sections of the Georgia Code, and to other rulings as to the evidence and to the giving and refusing of certain charges, and to the refusal of the court to set aside the verdict for the reason assigned in the motion.

Probably the most serious question involved by this appeal, and the assignment insisted upon most strenuously by counsel for appellant, is that under the laws of Georgia damages are not recoverable for mental anguish in cases for failure to deliver or delay in delivering telegrams, like the one in question, and that, the contract the basis of this action being made in Georgia, the laws of Georgia govern as to the damages recoverable for the delay or failure to deliver the telegram in question. It is insisted by counsel for appellant that the lex loci contractus, and not the lex fori, governs the measure of damages in this case. The complainant contained two counts, and both are treated as counts ex contractu. It must be conceded that there is much conflict of authorities on the question as to what law governs the recovery in telegraph cases where a telegram is sent from one state to another; some holding that the law of the state in which the telegram originated governs, and others holding that the law of the state where it is delivered, or where the negligent act complained of or where the breach of the contract occurred, governs as to the measure of damages. It is conceded that the law of the forum will govern in matters pertaining to remedy; but it is insisted by appellant that by "remedy" here is meant such matters as pertain to the character and form of action, evidence, procedure, mode of redress, limitations, executions, etc., and that the damages to be allowed, if fixed or limited by law, pertain to the right, and not to the remedy. So far as we know, this question has not been before passed upon by this court with regard to telegraph cases, though there are a number of cases which may be analogous. As this court has said: "A contract is usually governed as to its nature, obligation, validity, and interpretation by the law of the place where it is made, unless it is to be wholly performed in another state, in which case the place of performance, or in which the parties agree, must govern." 2 Mayfield's Digest, p. 668, subject "Conflict of Laws."

It should be remembered that in this case, as in most cases for failure to deliver or delay in delivering telegraph messages, while a contract is spoken of and the actions are often brought as for a breach of a contract, in fact, there is no express contract, or any express agreement. Whatever contract or agreement that exists is an implied one, and is usually, though not always, a breach of duty imposed by law, rather than a breach of an express contract; but it may be said that it is often, as in this case, a breach of an implied contract.

A "telegraph" is defined as an apparatus or machine used to transmit intelligence to a distant point by means of electricity. A "telegram" is a message or dispatch transmitted by the telegraph. A telegraph is such a public use as to justify the exercise of the right of eminent domain and to authorize the sovereign to regulate the business by a proper law. Telegraph companies are in many respects analogous to common carriers. Like common carriers, they are bound to serve the public without discrimination and cannot evade liability for the consequences of their negligence by any contract. Unlike common carriers, they are not insurers. A telegraph company is therefore...