Western Union Telegraph Co. v. Compton

• Decision Date: 08 June 1914
• Docket Number: (No. 24.)
• Citation: 169 S.W. 946
• Parties: WESTERN UNION TELEGRAPH CO. v. COMPTON.
• Court: Arkansas Supreme Court

169 S.W. 946

WESTERN UNION TELEGRAPH CO. v. COMPTON.

(No. 24.)

Supreme Court of Arkansas.

June 8, 1914.

On Rehearing October 5, 1914.

Appeal from Circuit Court, Hempstead County; Jacob M. Carter, Judge.

Action by G. D. Compton against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George H. Fearons, of New York City, Charles S. Todd, of Texarkana, Tex., and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant. U. A. Gentry, of Hope, and McMillan & McMillan, of Arkadelphia, for appellee.

McCULLOCH, C. J.

Plaintiff was the addressee of a telegraph message sent over defendant's line from Nashville, Ark., to Hugo, Okl., acquainting him of the critical illness of his child, and there was negligent delay at the point of destination in the delivery of the message, which prevented plaintiff from reaching the bedside of his child before its death, and plaintiff thereby suffered mental anguish. The trial jury awarded damages in a sum which is not claimed to be excessive under the testimony.

According to the statutes of this state, mental anguish is an element of recoverable damages for negligence in transmitting or delivering telegraphic messages; but such is not an element of damages in the state of Oklahoma, where the negligent delay occurred. We have held that under those circumstances there may be a recovery of such damages in this state. Western Union Tel. Co. v. Griffin, 92 Ark. 219, 122 S. W. 489.

Plaintiff was the addressee, and was therefore a party to the contract which was made for his benefit. West. Union Tel. Co. v. Short, 53 Ark. 434, 14 S. W. 649, 9 L. R. A. 744.

It is conceded that the evidence is sufficient to warrant the finding as to negligence of the servants of the defendant in delivery of the message, and that plaintiff suffered mental anguish on account of the delay but it is insisted that under the contract limiting liability of the company to the sum of $50 there can be no recovery in excess of that amount. The message was written upon a form containing the following stipulations, which became a part of the contract, to wit:

"To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed between the sender of the message and this company as follows:

"1. The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines, nor for errors in cipher or obscure messages.

"2. In any event, the company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery of this message, whether caused by the negligence of its servants or otherwise, beyond the sum of $50, at which amount this message is hereby valued, unless a greater value is stated in writing hereon at the time the message is offered to the company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of 1 per cent. hereof."

This court has held that a telegraph company is a public carrier, and cannot stipulate for immunity from liability on account of negligence of its servants in handling a message. West. Union Tel. Co. v. Short, supra. The same thing was held in the recent cases of West. Union Tel. Co. v. Hearn, 161 S. W. 1025, and West. Union Tel. Co. v. Alford, 161 S. W. 1027.

It is contended, however, that since the statute enacted by Congress in 1910 (Act June 18, 1910, c. 309, 36 Stat. 544, Fed. Statutes Ann. Supp. 1912, vol. 1, p. 112 [U. S. Comp. St. Supp. 1911, p. 1284]), amending the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), so as to include telegraph companies, and giving the Interstate Commerce Commission authority to regulate the rates and practices of such companies, the decisions of this state are no longer applicable, and that the enforcement of liability in disregard of the stipulation in the contract would be a forbidden interference with interstate commerce. The statute of this state, making mental anguish caused by negligence in handling a telegraphic message, an element of damages, is not a regulation of the transmission and delivery of such messages. It does not impose any new duties on telegraph companies, nor does it define what shall constitute actionable negligence. In fact, it does not create any new right of action at all. It merely amounts to a legislative declaration as to what are the elements of damages to be recovered. West. Union Tel. Co. v. Griffin, supra.

There is some conflict in the authorities over the question of mental anguish being an element of damages, and this court took position with what was conceived to be a majority of the courts of the country that there could be no recovery for mental anguish independent of physical injury. Peay v. West. Union Tel. Co., 64 Ark. 538, 43 S. W. 965, 39 L. R. A. 463. Subsequently the Legislature passed a statute declaring telegraph companies —

"shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages." Act March 7, 1903; Kirby's Digest, § 7947.

There is still a conflict upon this subject in the laws of different states, and, however much uniformity is to be desired so far as concerns interstate messages, the only method by which it can be attained is through an act of Congress fixing the measure of damages. Thus far there has been no federal legislation on that subject, and the only power given to the Interstate Commerce Commission is, as we understand, to regulate rates and classification of messages of telegraph companies. The act of Congress is of course exclusive, and in effect deprives the states of any power to burden that class of interstate commerce with any kind of regulation; but it leaves the laws of the states in force so far as concerns elements of recoverable damages. This is necessarily so, for otherwise there could not be any damages recovered, as Congress has failed to declare the elements of damages.

It is unimportant whether those elements of damages are expressly declared by statute in the states or result from the application of common-law principles. Penn. Rd. Co. v. Hughes, 191 U. S. 477, 24...