Western Union Telegraph Co. v. Wallace

• Decision Date: 20 February 1933
• Docket Number: 30453
• Citation: Western Union Telegraph Co. v. Wallace, 164 Miss. 759, 146 So. 142 (Miss. 1933)
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. WALLACE

146 So. 142

164 Miss. 759

WESTERN UNION TELEGRAPH CO. v. WALLACE

No. 30453

Supreme Court of Mississippi

February 20, 1933

Division A

1 COMMERCE.

Power of state to legislate concerning interstate commerce is suspended by Congress taking possession of field (Act Cong June 18, 1910[36 Stat. 539, see49 U.S.C. A., section 1 et seq.]).

2 COMMERCE.Addressee of telegram could not recover penalty or damages for employees' negligent delay in transmitting interstate message, where delay was not authorized, participated in, or ratified by company (Act Cong. June 18, 1910[36 Stat. 539, see49 U.S.C. A., section 1 et seq.];Code 1930, section 7059).

No recovery could be had for negligent delay of employees of telegraph company in delivering interstate message notwithstanding Code 1930, section 7059, since Congress has taken possession of field of interstate commerce by Act Cong.June 18, 1910(36 Stat. 539), and under federal rule neither state statutory penalty nor damages for mental anguish alone can be recovered, and punitive damages are not recoverable against master for willful or grossly negligent act of agent or servant, unless master participated expressly or impliedly, or by his conduct authorized or ratified act before or after its commission.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Marion countyHON. J. Q. LANGSTON, Judge.

Action by Gomer Wallace against the Western Union Telegraph Company.Judgment for plaintiff, and defendant appeals.Reversed, and judgment entered for defendant.

Reversed and judgment here for the appellant.

Jno.A. Yeager, of Lumberton, Francis R. Stark, of New York City, and Davis & Davis, of Purvis, for appellant.

There being no charge of monetary loss or physical injury inflicted and no charge that defendant participated in the alleged wrongful act of its agents or ratified the same after becoming apprised thereof, cannot be made to respond in damages or penalized under the Statestatute for the reason that the provisions of Sec. 8563 of the United States Codeas amended by Act of Congress, June 18, 1910, prevails to the exclusion of the State statutory and common law doctrine.

W. U. Teleg. Co. v. Showers, 112 Miss. 411, 73 So. 276.

This being an interstate message, recovery as to mental anguish or punitive damages is governed by Federal laws.

Postal Teleg. Cable Co. v. Eubanks, 121 Miss. 530, 83 So. 678;W. U. Teleg. Co. v. Norman, 83 So. 465.

Neither this chapter nor any provision thereof shall apply or be construed to apply to commerce with foreign nations or commerce among the several states of this Union except in so far as the same may be permitted under the provisions of the Constitution of the United States and the Acts of Congress.

Sec. 7127, Code of 1930.

Statutory penalties are not recoverable.

W. U. Teleg. Co. v. Belisoly, 62 S.E. 91, 116 Va. 562;Charleston & W. C. Ry. Co. v. Warnville Fur, Co.,35 S.Ct. 715, 237 U.S. 597, 59 L.Ed. 1137;Ill. C. R. R. Co. v. Mulberry H. Coal Co.,35 S.Ct. 760, 238 U.S. 275, 59 L.Ed. 1306;So. Ry. Co. v. Reid,222 U.S. 424, 32 S.Ct. 140;W. U. Teleg. Co. v. Peter Boegil,251 U.S. 315, 64 L.Ed. 281;Postal Teleg. Cable Co. v. Eubanks,83 So. 678;W. U. Teleg. Co. v. Bown,84 So. 143;W. U. Teleg. Co. v. Thompson,86 So. 273;Bushnell v. W. U. Teleg. Co.,120 N.E. 45;Leftridge v. W. U. Teleg. Co., 210 S.W. 18.

A state statute imposing liability on a telegraph company for mental anguish caused by its negligence--when disassociated with physical injury is obviated and abrogated in favor of the Federal Rule.

W. U. Teleg. Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 U. S. L.Ed. 1457;W. U. Teleg. Co. v. Lee,174 Ky. 210, 192 S.W. 70, Ann. Cas. 1918C 1026;Burelson D. G. v. Thomas,86 So. 577;W. U. Teleg. Co. v. Speights,254 U.S. 17, 41 S.Ct. 11;Sou. Exp. Co. v. Byers,240 U.S. 612, 60 L.Ed. 825;Johnson v. W. U. Teleg. Co.,171 S.W. 859;Frederick v. W. U. Teleg. Co.,179 N.W. 935;Nichols v. W. U. Teleg. Co.,191 P. 537;Herris v. W. U. Teleg. Co.,93 S.E. 465;W. U. Teleg. Co. v. Beach,211 P. 1034;Berg v. W. U. Teleg. Co.,96 S.E. 948;Schrade v. W. U. Teleg. Co.,192 S.W. 924;W. U. Teleg. Co. v. Kilgore,230 S.W. 593;Durre v. W. U. Teleg. Co.,161 N.W. 755;Mees v. W. U. Teleg. Co.,55 F. 691;Ky. v. W. U. Teleg. Co.,298 F. 357;W. U. Teleg. Co. v. Hall,287 F. 297;Jones v. W. U. Teleg. Co., 233 F. 301.

Whether or not the plaintiff is entitled to recover punitive damages in this case is to be governed by the law announced by the United States Supreme Court.Even if the conduct of the agent showed a reckless disregard of the rights of the appellee, the testimony must also show that the principal participated in the wrongful act, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed.

Western Union Tel. Co. v. Norman,83 So. 465, 121 Miss. 128.

Recovery cannot be had, under the Federal rule, for mental anguish based upon pecuniary loss--not even the cost of sending the message.

W. U. Teleg. Co. v. Hall, 287 F. 297.

Congress has taken possession of the field of interstate commerce by telegram and it results that the power of the state to legislate with reference thereto has been suspended.

W. U. Teleg. Co. v. Showers, 73 So. 276, 112 Miss. 411.

Under the Federal rule no recovery of punitive damages can be had on account of the willful conduct of the servant, unless the commission of the wrong was authorized by the master, participated in by him, or ratified by him.

Postal Telegraph & Cable Co. v. Eubanks, 83 So. 678.

Sebe Dale, of Columbia, for appellee.

Did the lower court have jurisdiction?The attorney for appellee says with all frankness he does not know.The Act of Congress of June 18, 1910, which is raised by appellant, may, and could, control.Appellant cites an array of cases that seem to cover.But the reports of the courts of the different states have a multitude of decisions permitting recovery and then, too, our statutory provisions which seem to permit such.

Jordan v. Western Union, 72 So. 339, 197 Ala, 28;Western Union v. Thomas,96 So. 873, 209 Ala. 657;Western Union v. Taylor,100 So. 163, 87 Fla. 398, 114 So. 529, 94 Fla. 841;Western Union v. Teague,78 So. 610, 117 Miss. 401;Postal Tel. v. Kennedy,81 So. 644, 120 Miss. 332;Western Union v. Baker,69 So. 346, 14 Ala.App. 208;Western Union v. Thompson,86 So. 273, 123 Miss. 441;Postal Tel. v. Ross, 71 So. 904, 111 Miss. 649.

There was actual damage and though it was not great damage the case is not separate and apart from actual damage.

Jordan v. Western Union, 72 So. 339, 197 Ala. 28;Western Union v. Thomas,96 So. 873, 209 Ala. 657;Western Union v. Taylor,100 So. 163, 87 Fla. 398, 114 So. 529, 94 Fla. 841.

Argued orally by F. R. Stark and Jno.A. Yeager, for appellant.

OPINION

Cook, J.

The appellee instituted this suit in the circuit court of Marion county against the appellant, the Western Union Telegraph Company, for twenty-five dollars statutory penalty, and one thousand, five hundred dollars actual and punitive damages, for the alleged negligent delay of about three days in the delivery of an interstate message filed at Millport, Ala., for transmission to the appellee at Columbia, Miss.

The only damage alleged or proved was mental anguish caused by the failure of the appellee to reach the bedside of his mother before she became unconscious, her death having occurred a few hours after he reached her bedside.By demurrer to the declaration, and by special pleas, the appellant challenged the right of the appellee to recover the statutory penalty (Code 1930, section 7059), or damages for mental anguish, under the Act of Congress of June 18, 1910(36 Stat. 539), and amendments thereto, regulating interstate commerce, including the transmission and delivery of interstate telegraphic messages (see49 U.S.C. A., section 1 et seq.).

The demurrers to the declaration were overruled, and at the conclusion of the evidence, both parties...