Western Union Telegraph Co. v. Rogers

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Western Union Telegraph Co. v. Rogers, 172 Miss. 853, 161 So. 131 (Miss. 1935)
• Decision Date: 22 April 1935
• Docket Number: 31683
• Parties: WESTERN UNION TELEGRAPH Co. v. ROGERS

161 So. 131

172 Miss. 853

WESTERN UNION TELEGRAPH Co. v. ROGERS

No. 31683

Supreme Court of Mississippi

April 22, 1935

Division B

Suggestion Of Error Overruled, May 20, 1935.

APPEAL from the circuit court of Lauderdale county, HON. J. D FATHERREE, Judge.

Action by Velma Rogers against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Francis R. Stark, of New York City, and George B. Neville, of Meridian, for appellant.

A telegraph message between two points in the same state sent over a route passing out of the state is interstate.

Western Union Telegraph Co. v. Speight, 254 U.S. 17, 65 L.Ed. 104; Western Union Telegraph Co. v. Halbert, 124 Miss. 214, 86 So. 760; Western Union Telegraph Co. v. Allsworth, 124 Miss. 221, 86 So. 762.

Damages for mental anguish or for physical suffering growing out of mental anguish are not recoverable in suits against telegraph companies for failure to deliver an interstate message.

Western Union Telegraph Co. v. Wallace, 164 Miss. 759, 146 So. 142; Ey v. Western Union Tel. Co., 298 F. 357; Nees v. Western Union Tel. Co., 55 F.2d 691.

The federal rule as to damages for mental anguish and punitive damages, applies where the message is an interstate message, in cases where the negligence alleged is the failure of the telegraph company to notify the sender promptly of its inability to deliver the message to the sendee.

Barbour v. Western Union Telegraph Co., 97 So. 136.

The fact that the appellee was damaged to the extent of forty cents (the tolls on the message) does not justify the allowance of damages for mental anguish.

Western Union Tel. Co. v. Hall, 287 F. 300; Corcoran v. Postal Telegraph-Cable Co., L.R.A. 1915B 552; Stansell v. Western Union Tel. Co., 107 F. 668.

For federal rule as to the recovery of punitive damages from a master for the gross and willful negligence of a servant, see Western Union Tel. Co. v. Aldridge, 66 F.2d 26; Hagan v. Providence & W. R. Co., 3 R. I. 88; Western Union Tel. Co. v. Wallace, 164 Miss. 759, 146 So.142.

There was no evidence that the agents of the appellant were guilty of wilful, wanton or gross negligence in the handling of the message.

Cock v. Western Union Tel. Co., 84 Miss. 380, 36 So. 392; Sutherland on Damages (4 Ed.), sec. 974, page 3617.

There was no evidence that the appellant authorized, or ratified, expressly or impliedly, any wilful or gross negligence of its agents in the handling of the message.

17 C. J. 993, par. 291; Toledo, St. L. & W. Ry. v. Gordan, 143 F. 95.

If the message had been an intrastate message, then appellee, under the Mississippi decisions, would not be entitled to recover damages for mental anguish.

Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823; Duncan v. Western Union Tel. Co., 93 Miss. 500, 97 So. 552; 49 L.R.A. 212, 213.

Even without the benefit of the federal rule the relationship between the appellee and her uncle was not such as to entitle her to recover for mental anguish.

Lee v. Western Union Tel. Co., 130 Ky. 202, 113 S.W. 55; Denham v. Western Union Tel. Co., 27 Ky. L. Rep. 999, 87 S.W. 788; Western Union Tel. Co. v. Wilson, 97 Texas, 22, 75 S.W. 482; Western Union Tel. Co. v. Ayers, 131 Ala. 391, 90 Am. St. Rep. 92, 31 So. 78.

No notice was given to the appellant of the relation between the sendee and the dead person.

Western Union Telegraph Co. v. Coffin, 88 Tex. 94, 30 S.W. 896; Western Union Tel. Co. v. Wilson, 97 Tex. 22, 75 S.W. 482; Western Union Tel. Co. v. McMillan, 30 S.W. 298; Western Union Tel. Co. v. Gibson, 39 S.W. 198; Western Union v. Samuels, 141 S.W. 802; Amos v. Western Union, 79 S.C. 259, 128 Am. St. Rep. 845; Western Union v. Brown, 71 Texas, 723, 2 L.R.A. 766, 10 S.W. 323.

H. R. Stone, Sr., and Nate S. Williamson, both of Meridian, for appellee.

Since the message would necessarily have to be telephoned to Lake if it was to be delivered at all within the contract period, then it was not an interstate message and the transmission of the message continuously in a circuitous route from Meridian to Atlanta, thence to Memphis, thence to Jackson, Mississippi, thence to New Orleans, thence back to Meridian was a senseless, vain and foolish thing.

When the message was finally delivered it was delivered contrary to instructions from the sender of the message and in wilful violation of the conditions under which it was received for transmission.

Postal Tel. Cable Co. v. Nichols, 16 L.R.A. (N.S.) 870, 89 C. C. A. 585, 159 F. 643, 14 Ann. Cas. 369.

It was wanton, wilful negligence not to telephone this message, and have it delivered by messenger at Lake, and when no reasonable excuse is offered for not doing so, the jury had a right to find that the failure so to do was intentional.

Western Union v. Teague, 78 So. 610; 17 A.L.R. 109; 55 A.L.R. 639.

Where no explanation is attempted for failure to notify, the jury is warranted in finding such failure to be wilful and intentional.

26 R. C. L. 610, sec. 107; Foreman v. Western Union, 19 L.R.A. (N.S.) 374.

The true rule is that a death message is sufficient to put the telegraph company on notice of the importance of the message, and that mental suffering will probably follow failure to deliver.

There is no decision of our court, so far as known to us, in which a recovery of mental suffering has been denied where there was gross negligence tantamount to wilfulness.

Western Union v. Watson, 82 Miss. 101, 33 So. 76.

Argued orally by George B. Neville, for appellant, and by Nate S. Williamson, for appellee.

OPINION

Anderson, J.

Appellee brought this action against appellant in the county court of Lauderdale county to recover actual and punitive damages alleged to have been suffered by her because of appellant's failure to transmit and deliver a death message to her within a reasonable time. The declaration charged that the delay resulted from willfulness or gross negligence on the part of appellant. There was a recovery in the sum of two hundred dollars. From that judgment appellant appealed to the circuit court of the county, where the judgment was affirmed. From that judgment appellant prosecutes this appeal.

The appellee had an uncle at Enterprise. Appellee resided at Lake, and one of her daughters, the sender of the telegram in question, Marcella Radcliff, resided at Meridian, all in this state. At about seven-fifteen p. m. on April 29, 1933, appellee's daughter gave appellant a message to be delivered to her mother at Lake, in which she stated that the uncle at Enterprise had died and would be buried at that place at ten o'clock the next day, which was Sunday. The fee for the message was forty cents, which was paid by appellee. The message was not delivered until the next Monday morning at about eight-thirty. The uncle had been buried the day before.

The evidence showed that for the purposes of convenience, efficiency, and economy appellant had established in its system certain trunk lines with relay stations thereon, through which messages from and to all smaller stations were collected and handled; that the trunk line and relay stations from Meridian to Lake were Atlanta, Ga., Memphis, Tennessee, and Jackson in this state. The telegram involved went over that route. Therefore, it was an interstate message, and this is true regardless of the motive of appellant in the establishment and maintenance of these trunk lines and relay stations. Western Union Tel. Co. v. Speight, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104; Western Union Tel. Co. v. Halbert, 124 Miss. 214, 86 So. 760; Western Union Tel. Co. v. Allsworth, 124 Miss. 214, 86 So. 762.

Appellee sought to recover compensatory damages for the loss of the forty-cent charge, and for mental anguish and physical suffering resulting therefrom, and punitive...