Western Union Telegraph Co. v. Norman

• Decision Date: 12 January 1920
• Docket Number: 20710
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. NORMAN

83 So. 465

121 Miss. 128

WESTERN UNION TELEGRAPH CO. v. NORMAN

No. 20710

Supreme Court of Mississippi

January 12, 1920

October 1919

APPEAL from the circuit court of Forest County, HON. ROBT. S. HALL Judge.

Suit by M L. Norman against the Western Union Telegraph Company v. Hawkins, 73 So. 873, of the defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. B Harris, for appellant.

1. In answer to the first question we have to say that this court is bound by the interpretation placed by the supreme court of Alabama in the case of the Telegraph Company v. Hawkins, 73 So. 873, of the Acts of Congress of July 18, 1910, unless this court is prepared to say that the Hawkins case is not the law of the state of Alabama as applied to contracts of this character. If it is the law of Alabama, then under the well-settled rules, it entered into and became a part of the contract as fully and completely as if expressly referred to and incorporated in its terms and is binding upon this court.

The question to be determined by this court is, what is the law of the state of Alabama, and that is not to be determined by the conclusion that this court might have reached in its interpretation of the statute or the conclusion which it has reached when applied to transactions and contracts arising in this state. See Johnson v. The Western Union Telegraph Company, 10 L. R. A. (N. S.), page 256, where is a full discussion on the subject.

We are certainly unable to see why the interpretation placed by the supreme court of Alabama upon the Act of Congress is not just as much the law of Alabama as the interpretation of that court placed upon one of its own statutes or one announcing its interpretation of the rules of the common law. The lex loci contractus, for the general rule see 9 Cyc., page 668; Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793.

We think we showed in our original brief that the rule is well settled in this state, See Commercial Bank v. Auze, 74 Miss. 609; Brown Bros. v. Freeland & Murdock, 74 Miss, 181; Partee v. Silman, 44 Miss. 272; Brown v. Nevitt, 27 Miss. 801; Bant v. Tarlton, 23 Miss. 173.

We cite the following cases in which the telegraph companies were parties and where the claims for damage were similar to those in the case at bar, to show how general is the application of the rule. Alabama: Western Union Tel. Co. v. Favish, 71 So. 183; Arkansas: Western Union Tel Co. v. Woodard, 105 S.W. 579; Connecticut: Penobscot Fish Co. v. W. U. Tel. Co., 98 A. 341; Iowa: Markley v. W. U. Tel. Co., 132 N.W. 37; Missouri: Reed v. W. U. Tel. Co., 37 S.W. 904; North Carolina: Johnson v. W. U. Tel. Co., 57 S.E. 122; Oklahoma: Western Union Tel. Co., v. Pratt, 89 Pa. 237; Texas: Western Union Telegraph Company v. Walker, 74 S.W. 751; Ligon v. Western Union Telegraph Company, 102 S.W. 429; Wisconsin: Fox v. Postal Tel-Cable Co., 120 N.W. 399; Telegraph Company v. Robins, 109 Miss. 775; Alexander v. Pullman Car Company, 117 Miss. 348

Aside from the foregoing considerations and aside from the decision in the Dickerson case, I have never been able to understand why this court has apparently ignored the rule laid down in the case of the Southern Express Company v. Ryers, 240 U.S. 60, L.Ed. 825-827, in reference to damages for mental anguish.

In the case at bar the telegram was unquestionably interstate commerce, that has been settled too clearly by repeated decisions of the supreme court of the United States to admit of question. Being such, aside from any consideration of the application of the Act of Congress, the subject was governed by the principles of the common law as accepted and enforced by the federal court, and therefore, any instruction that damages for mental anguish could be recovered was erroneous. In none of the decisions which have been heretofore rendered by this court has it passed upon the Byers case and its application to matters strictly interstate commerce.

I have never been able to understand how this court in dealing with a Federal transaction that is to say, matters of interstate commerce purely, could refuse to apply a rule as laid down by the Supreme Court of the United State as governing such transactions. The telegram in this case was just as much interstate commerce as the shipment of casket and grave clothes in the Byers case, and there certainly can be no reason, that I can see, why the right to recover for mental anguish in one should be denied and given in the other.

If the subject-matter in this suit was an interstate shipment would this court be governed by the rule laid down in the Byers case? Manifestly under the well settled and well recognized rule, the subject-matter being one of interstate commerce, a matter of Federal concern, this court would necessarily be governed by the decision of the supreme court of the United States.

2. In the response to the second question, that is to say, whether conceding that the interpretation of the Alabama court of the Act of Congress as announced in the Hawkins case is binding upon this court, can punitive damages be recovered in an amount exceeding that stipulation in the contract. We have no hesitation in saying that the limitation in the contract is binding and enforceable, and damages in excess of the amount limited cannot be recovered, whether these damages are actual or exemplary. Why? It seems that the conclusive answer is that this contract is to be governed by the Alabama Law, and conceding that the Hawkins case announces the Alabama Law, the Alabama court has held distinctly in the Hawkins case that the stipulations in the contract "are binding on the sender of the message, State laws and decisions to the contrary notwithstanding, and that the state courts are without jurisdiction to declare the matter unreasonable unless so predetermined by the Interstate Commerce Commission," and bases its decisions upon the numerous cases cited in the opinion holding the same.

We must not be taken as conceding that this is a case for punitive damages. We think, on the record, it is utterly barren of any evidence of malice, fraud, or wilful wrong.

3. In answer to the third question propounded by the court, we have to say, first, that we cannot see by what process of reasoning this court will reach the conclusion that the Alabama Law does not apply to this contract for the reasons we have set forth above.

Under the law of Alabama this is the character of case in which damages for mental anguish cannot be recovered. See Western Union Telegraph Company v. Sledge, 153 Ala. 291, 45 So. 259, in that case it was expressly decided that damages for mental anguish will be restricted to messages relating to sickness or death, see also Telegraph Company v. Westmoreland, 151 Ala. 319, 44 So. 382. It was expressly held in the Sledge case that damages for mental anguish could not be recovered for the nondelivery of a telegram to meet the sender at a Railroad station where, as the result of the failure to transmit the message no actual tort was committed upon the plaintiff. The giving of this instruction violates the Alabama Law.

We must not be taken, however, as abandoning our position that as under the rule laid down in the Byers case, supra, that this transaction as being interstate commerce was governed by the Federal rule as to mental anguish, and that the rule must be applied throughout. But if mistaken in this, then certainly the Alabama Law as to mental anguish must govern, and damages for mental anguish of the character here claimed cannot be recovered in Alabama. We are citing below a number of cases from Alabama and elsewhere in which it has been held that in case of this character, damages for mental anguish cannot be recovered. Federal: Stafford v. Western Union, 73 F. 273; Alabama: Western Union Telegraph Company v. Longe, 41 So. 3965. (Semble); Western Union Tel. Co. v. Pattie Westmoreland, 44 So. 382; Western Union Tel. Co. v. Sledge, 45 So. 59; Western Union Tel. Co. v. Lucile Westmoreland, 43 So. 790; Compare W. U. v. Collins, 47 So. 61 ($ 345 held excessive for "inconvenience and annoyance" of twenty-mile hack drive): Arkansas: Western Union v. Hogue, 94 S.W. 924; Western Union v. Hanley, 107 S.W. 1168; Indiana: Western Union v. Bryant, 46 N.E. 775 (Mental distress and nervous prostration); Mississippi: Yazoo, etc., R. R. v. Foster, 23 So. 581. (Recovery allowed for tolls and costs of conveyance walking two miles); North Carolina: Williams v. Western Union, 48 S.E. 559 (have Dr. R. meet me at W. Friday); Pennsylvania: Allen v. Western Union (Ct. of common pleas Erie Co. 1903, although sender a woman and sick, arriving in the night time); South Carolina: Jones v. Western, Union, 55 S.E. 318 (Meet me at Union this P. M.) (But see Toale v. W. U., 57 S.E. 111, infra; Dempsey v. W U., 58 S.E. 9, infra; Todd v. W. U., 58 S.E. 433; Kirby v. W. U., 58 S.E. 10; Texas: Western Union v Ragland, 61 S.W. 421, (Recovery allowed for loss of time but not exposure); W. U. v. Smith, 76 Tex. 253, 13 S.W. 169 (No recovery for exposure); W. U. v. Campbell, 81 S.W. 580 (No recovery without proof that plaintiff could not have obtained a conveyance, and no recovery for catching a cold because of having no night dress).

4. In answer to the fourth injuiry we refer the court to our answer to the third injuiry and authorities therein set forth. See Western Union Telegraph Company v. Miller, 97 Miss 225; Railroad Company v. Prentice, 147 U.S. 101, 37 L.Ed. 97; Adams express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148 57 L.Ed. 314, 44 L. R. A. (N. S.) 257; K. C. S. R. Co. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683; H. E. & W. T. Ry. Co. v. U.S. 234 U.S. 342, 34 S.Ct. 432, 58 L.Ed. 1341; So. Ry. Co. v. Prescott, 240...