Western Union Telegraph Co. v. Meek
| Decision Date | 02 July 1917 |
| Citation | 75 So. 772,115 Miss. 82 |
| Court | Mississippi Supreme Court |
| Parties | WESTERN UNION TELEGRAPH CO. v. MEEK |
March 1917
ON SUGGESTION OF ERROR.
For former opinion, see 74 So. 788.
Judgment reversed.
J. A Sykes, for appellant.
This is a suit to recover the twenty-five dollars, statutory penalty for the appellant's failure to deliver a message under Laws 1908, chapter 76, page 65, which reads as follows "A telegraph or telephone company shall deliver all messages addressed to a person residing or having a place of business in any city, town, or village where it may have an office, or within one mile of its office; and if any telegraph or telephone company shall receive any message or matter for transmission, and shall fail, neglect or refuse without good and sufficient reason, to transmit correctly or deliver the same within a reasonable time to the person addressed, such person, or the person injured, shall be entitled to recover of the company in default the sum of twenty-five dollars in addition to damages for any injury."
The court will see from the statement of facts and the record in this case that this message was never transmitted to Columbus, its destination. For this reason, the statute does not apply, as this is a suit for the delivery penalty, not a delay transmission. The statutory penalty of fifteen dollars for a delayed transmission does not figure in this suit at all. (Laws 1908, ch. 78.).
In order for the delayed delivery penalty to be recovered, there must be a transmission to the office of the destination of the message--a completed transmission. A receipt of said message by said office of destination which in this case was the Western Union Office at Columbus, Mississippi; and a consequent failure to deliver the message within a reasonable time without good and sufficient reason to the sendee. In other words, a delivery of any kind, presupposes a complete transmission and receipt. Until a message is so transmitted and received, it is not in the attitude to be delivered, in fact it is an impossibility to make delivery, for there is nothing to deliver. And certainly if there is nothing to deliver then most assuredly, there is nothing to which a penalty for a delayed delivery could attach to.
The case of Marshall v. Telegraph Company, 79 Miss. 161, decides this point, where the court speaking through Judge WHITFIELD, says: "We understand both cases to hold that it is competent for a state in the exercise of its police power, to enforce a reasonable penalty for a failure on the part of the company to deliver within a reasonable time without good excuse therefor from the office of the destination to the sendee, a telegram transmission being wholly over, and this the Alexander case (66 Miss. 161) holds." This case was expressly reaffirmed in Telegraph Company v. Hall, 79 Miss. 623.
These Marshall and Hall cases also hold that this delivery statute being penal must be strictly construed. In both of the above cases, the messages were promptly delivered after being received by the office of destination but were delayed in transmission.
Miss Peters of the appellant's office at Jackson, Mississippi, received this message from Memphis, Tennesses. It was after office hours at Columbus, and that office was, of course, closed; consequently, she called for Meek over the 'Phone, but was unable to get him. As narrated in the statement of fact, she read the message to Holesapple, who told her he would take the message for Meek. And thinking the message was delivered, it was never transmitted to Columbus, which fact is absolutely undisputed.
If it is therefore undisputed that the message was never transmitted to Columbus, then under the Marshall and Hall cases holding that the transmission must be wholly over, then certainly the penalty cannot be recovered in this case. If there is any penalty at all recoverable in this case, it is the penalty for a delayed transmission. This, however is not sued for.
Should it be argued in this case that a delayed transmission would cause a delayed delivery, the two penal statutes to say nothing of the Marshall and Hall cases would rob such a contention of its merits. The two statutes clearly show that it was the legislative intent to penalize two things: one a delayed delivery, the other a delayed transmission. The statutes are plain, and do not require the strict construction to which they are entitled. So therefore, if a plaintiff sues for one of these penalties, he must sue for the right one. He cannot recover the delayed transmission penalty for a delayed delivery, nor can he recover the delayed delivery penalty for a delayed transmission as in this case. It is therefore up to him to know how he has been wronged, if wronged he is, and having filed his declaration, he must stand by it.
We therefore submit that for the reason sent forth in this brief, the peremptory instruction allowing plaintiff to recover the statutory penalty for a delayed delivery was error, and that the case should be reversed and judgment entered here for appellant.
W. C. Meek, for appellee.
I have argued this case different from most case, in a practice now in Mississippi, at Columbus, Mississippi, of over thirty-seven years; on account of its being a case near my heart on account of the oppression of my nephew, and it being so gross, etc., I "filed" for him this suit and won. I ask the judgment be affirmed, for the presumption of law is, the lower court acted correctly and an affirmation should follow. There is absolutely no error at all in the case; no interstate commerce, and could not be on the facts and case honestly made here. On interstate Commerce, 162 U.S. 650, 663, 40 "L," page 1105. Western Union Telegraph Co. v. James.
COMMERCE: State law requiring prompt delivery of telegrams is valid police regulation even as to messages from other states. James Case in 162 U.S. Reports, pages 650, 653 and 663. Legislation of a state, aiding commerce is valid. Commerce: State imposition of a penalty for telegraph company's neglect of legal duty is not commerce regulation see same James case above, pages 650, 653, 654, etc., numerous other cases. This case of James, Your Honors, is my case here, on all-fours a suit for penalty and damages. Please see and read it. We rely on the James case fully as it is like our case, here. Case here should be affirmed and we are satisfied on an affirmation for the penalty of twenty-five dollars.
We ask in law an affirmation and cite James case, a Georgia case, for the penalty, Congress has not acted on Telegraph messages, etc. We will ask no further time as our case has to be affirmed, in law.
The James Case says: A state statute imposing a penalty for lack of due diligence in delivering a telegram is made in the reasonable exercise of the police power of the state is not an unconstitutional interference, with interstate commerce as applied ever to interstate messages, in the absence of any legislation by Congress on the subject. James Case, 162 U.S 40 "L" Ed., page 1105, same 162 U.S. pages 650, 663. This settles the case. This was not interstate; Tunica, Mississippi to Columbus, Mississippi, for a nondelivery. James case settles it. Congress never has acted on the subject here. I have all congressional acts, etc., and it has not done so. So we win an affirmation. Commerce. State law requiring delivery of telegrams, is valid police regulation, even as to messages from other states. See James Case, 162 U.S. page 653. Same approved, in 94 S.E. 429 and many other cases. Legislation which is a mere aid to commerce may be enacted by a state. Same James case above. Commerce states imposition of a penalty for Telegraph Companies neglect of legal duty is not commerce regulation. Same case as above, page 661. Same approved in 169 U.S. 634. Telegraphs right of receiver of message to collect statutory penalty for its delayed delivery is unaffected by senders contract. Same case; all in James Case, 162 U.S. pages 650 and 653. Same in Law. Lawyers Cooperative Edition, No. 40, page 1105, bottom of page. A state statute imposing a penalty for lack of due diligence in delivering a telegram is made in a reasonable exercise of the police power of the state, is not an unconstitutional interference with Interstate Commerce as applied to interstate messages, in the absence of any legislation by Congress on the subject. Here, cases at bar no interstate purely intrastate--inside of state, penalty, nondelivery in state, or messages sent in the state from Tunica, Mississippi, in the state to Columbus, Mississippi, in the state, hence; even if above recovery has to be had here of penalty and Congress has never regulated or passed any law on the subject and none can be shown, for there is none. See James Case above, 162 U.S. pages 650 and 654. Same Law, Ed., page 1105. An action for a penalty for delay in delivering (hence an utter failure to deliver at all; a non-delivery) a telegram is unaffected by any stipulation as to any liability, etc. Here a suit for the penalty, etc., for a failure to deliver at all, and not any concern at all as to transmission, how sent, etc. Here a failure to deliver. In the James case, it is said: Can it be said that the imposition of a penalty for the violation of a duty which the company (this same appellant here, too) owed by the general law of the land (state) is a regulation of or an obstruction to Interstate Commerce within the meaning of that clause of the Federal Constitution under discussion here. We think not. Although a message from another state (here, case at bar, same state) comes from a place outside of the state, it is yet under the jurisdiction of the state where it is to be delivered (after its arrival therein at the place of delivery). ...
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