Western Union Telegraph Co. v. Pearce

• Decision Date: 13 April 1903
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. MARGARET PEARCE

34 So. 152

82 Miss. 487

WESTERN UNION TELEGRAPH CO. v. MARGARET PEARCE

Supreme Court of Mississippi

April 13, 1903

March 1903

FROM the circuit court of, second district, Yalobusha county. HON SAMUEL C. COOK, Judge.

Mrs Pearce, appellee, was plaintiff and the Telegraph Company appellant, defendant in the court below.

This suit was to recover $ 1,950 actual damages and the statutory penalty of $ 25 from the Western Union Telegraph Company for failure to promptly deliver a telegraph message sent by plaintiff from Water Valley, Miss., to her husband, at McComb City, Miss. Mr. Pearce lived in Water Valley, but he was temporarily at McComb City at work, boarding at McColgan's hotel there. The message was as follows "Water Valley, Miss., 16th of March, 1901. F. A. Pearce, at McColgan's hotel, McComb City, Miss.: Come home at once. Baby is sick. (Signed) Margaret Pearce." This message was written on a piece of white note paper, and sent to the telegraph office in Water Valley about 6 o'clock in the afternoon of the 16th of March, 1901, and its transmission paid for. It was delivered to Mr. Pearce in McComb City, about 12 o'clock, March 17, 1901, and he left that place for home on the first train, about 9 o'clock that night. If the telegram had been delivered promptly Pearce would have caught an earlier train and reached home several hours before he did. The declaration alleges that plaintiff was pregnant, expecting to be confined in about a month; that plaintiff's previously born child became ill, and its life was despaired of, while she was in that condition; that plaintiff was greatly worried and troubled, and deprived of the presence and comfort of her husband's companionship at that time, and his care and counsel and his services in nursing the child, and her strength was taxed beyond her ability by the care and responsibility of nursing the sick child, of which she would have been relieved by the presence of her husband, whereby she became sick and suffered great mental and physical pain, and the child with which she was pregnant was caused to be prematurely born, and died within a few hours afterwards. It is conceded that the defendant company had no knowledge of Mrs. Pearce's condition. It had no notice of the extent of the sickness of the previously born child, further than what was disclosed by the message, and no knowledge of any of the circumstances upon which the claim for special damages is based. There is no evidence to show whether the delay was in the delivery of the message at McComb City or delay in the transmission. There were verdict and judgment for plaintiff for $ 650. Defendant's motion for a new trial was overruled, and it appealed to the supreme court.

Reversed and remanded.

R. H. Golladay and Mayes & Harris, for appellant.

The message refers to baby's sickness alone. Neither from it nor any "extraneous information" could any one, plaintiff not excepted, have foreseen or reasonably anticipated her alleged injuries as a result of delay in delivery of message. Clifton's Case, 68 Miss. 309; Jacob's Case, 76 Miss. 278; Johnson's Case, 79 Miss. 60, 1.

If it be assumed, firstly, that possibly Pearce, had he received the message before 8 P.M. of the 16th, would have left McComb's on the train at that hour and arrived in Water Valley at 4.15 A. M. of the 17th; and, secondly, that had he got home at 4.15 A. M. of the 17th he'd have averted the stings and arrows of outrageous fortune, that, on that day smote his wife, the plaintiff, the assumption does not help plaintiff.

Possibilities or conjectures will not sustain a verdict. Cathey's Case, 70 Miss. 332, 337, 338, 339; Woolley's Case, 77 Miss. 927, 924; Johnson's Case, 79 Miss. 58, 61.

Because in his absence, ergo, because of his absence, is "unsound as evidence or argument."

Though negligence be causa sine qua non, if not causa causans, the immediate proximate cause of the injury, a defendant is not amenable for the injury. Crawley's Case, 70 Miss. 343, 344; Wharfboat, etc., v. Wood & Co., 64 Miss. 661; 675 et seq.; Meyer v. King, 72 Miss. 1, 7, 8, 9; Railroad Co. v. Millsaps, 76 Miss. 855, 857, 858; Railroad Co. v. Woolley, 77 Miss. 927, 943; Railroad Co. v. Rooks, 78 Miss. 91, 97.

There can be no presumption indulged that a penalty has been incurred.

There is no evidence in this case from which it can be inferred that the company did not promptly deliver the message after its arrival in McComb City. Marshall v. Western Union Tel. Co., 79 Miss. 154.

The court will see that all of the testimony offered of any facts upon which to base the claim for special damages were excluded from the jury.

In the first place, the court excluded from the consideration of the jury the fact of the plaintiff's pregnancy, it being conceded by counsel for the plaintiff that the telegraph company had no knowledge whatever of the plaintiff's condition. This action of the court was unquestionably right.

Furthermore, the court excluded from the jury the testimony of Mrs. Pearce, the plaintiff, on the point that her husband, if at home, could have relieved her of the responsibility of nursing. The court, by an instruction, excluded from the consideration of the jury any mental anxiety or suffering by the plaintiff. What was there left in the case then upon which a verdict could possibly be supported?

It has been expressly decided by this court that in the absence of either language in the message, or some extraneous information of the facts, upon which special damages would arise, a recovery cannot be had. Tel. Co. v. Clifton, 68 Miss. 307.

Kimmons & Kimmons, for appellee.

The damages in this case are not too remote, but are the direct and proximate cause of the injury. The appellee needed rest because of the conditions in her home. She got no rest because of the fact that her husband was away. On account of the negligence of the company, her husband was away, so the absence of her husband is the cause of...