Western Union Telegraph Co. v. Teague

• Court: Mississippi Supreme Court
• Writing for the Court: STEVENS, J. Per Curiam.
• Citation: Western Union Telegraph Co. v. Teague, 78 So. 610, 117 Miss. 401 (Miss. 1918)
• Decision Date: 07 January 1918
• Docket Number: 19229
• Parties: WESTERN UNION TELEGRAPH CO. v. TEAGUE ET AL

78 So. 610

117 Miss. 401

WESTERN UNION TELEGRAPH CO. v. TEAGUE ET AL

No. 19229

Supreme Court of Mississippi

January 7, 1918

APPEAL from the circuit court of Atala county, HON. H. H. RODGERS Judge.

Suit by Lucy Jane Teague and others against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

Appellee Lucy Jane Teague is the mother, and the other appellees are the next of kin, of Simon Teague, deceased. They instituted this suit against the Western Union Telegraph Company for the alleged negligent failure of the defendant company to deliver a telegram. Simon Teague, while an inmate of the state penitentiary at Nashville, Tenn., died of tuberculosis. The warden of the penitentiary thereupon filed with the Western Union Telegraph Company the following message, addressed to the mother, Lucy Jane Teague, at McAdams, Miss.:

"Simon Teague dead. What disposition shall we make of body? Answer."

This message was filed with the company at 4:55 p. m., Saturday November 6, 1915, and was promptly transmitted over the wires of the Western Union to, and arrived at, Winona, Miss. about 5:17 p. m. as shown by the face of the message. When the message was given the defendant company, the tariff book of the company showed that the Western Union Telegraph Company had connection with the little station of McAdams by telephone from Winona, and in receiving the message the company charged and received eighteen cents for the extra telephone service. The mother and relatives of Simon lived in sight of the railroad at McAdams station, and there is therefore no contention in this case that the sendee of the message was not known to the company or could not be found. The message was not forwarded from Winona to McAdams, either over the wire of the Western Union or the Cumberland Telephone Company, and the only delivery was by mail. The young lady who received the telegram at Winona testified that she called up the long-distance office of the Cumberland Telephone Company in an attempt to transmit the message from Winona to McAdams, but was advised that the Cumberland Telephone & Telegraph Company had discontinued service to McAdams. The agent then forwarded a service message to Nashville as follows:

"Undelivered. No phone connection at McAdams. Yours dated Lucy Jane Teague signed Shaw. Will mail copy, best can be done."

She did mail a copy, but the copy did not reach appellee until Monday. In the books of the Western Union Telegraph Company McAdams was listed as a telephone station, and at the time the message was received at Nashville for transmission the record showed that delivery could be made from Winona over the line of the Cumberland Telephone & Telegraph Company. As a matter of fact, the arrangement between appellant and the Cumberland Telephone Company had been discontinued for about a year, but there had been no revision of the books to show this. There is evidence that the Postal Telegraph-Cable Company had an office at Kosciusko, Miss., and direct telephone connection with McAdams over the Kosciusko Telephone Company, and that the Postal Company did a regular business at McAdams. In this way it is shown that the agent of the Western Union Telegraph Company could have promptly and easily transmitted the message from Winona through the Postal Telegraph Company. There was a store at McAdams and a telephone station there, from which messages could be sent to Kosciusko for delivery to the Postal Telegraph-Cable Company and upon receipt of the mailed copy of message here complained of, appellee, who is an illiterate negro woman, requested Mr. Gowan, a white man and her employer, to transmit a message to C. C. Shaw, the warden at Nashville, and a telegram of inquiry was promptly transmitted to Nashville, and in response appellee received the following message, that was introduced in evidence:

"Nashville, Tenn. Lucy Jane Teague, Kosciusko, Miss.: The body of Simon Teague was held twenty-four hours, the time prescribed by law. Could ship body. Would incur extra expense of thirty-five dollars for embalming and for extra charges to your place. Send money if you desire body shipped.

[Signed.]

C. C. SHAW."

It may be stated here that the testimony for the plaintiffs in the court below shows that Simon Teague had been desperately ill for some time; that his mother was in frequent communication with him; that she occasionally sent him money and food suitable for an invalid; that she was expecting his death from tuberculosis, and had requested the authorities of the penitentiary to notify her when her son died, so that the body could be shipped promptly; that she had saved from her meager earnings twenty-five dollars to defray the expense of shipment; and that this was all the money she had or was able to secure or borrow. When, therefore, she received the message from Nashville that the extra expense for embalming would swell the charges to fifty-seven dollars she made application to her landlord and employer for the additional funds, but failed to raise the necessary money. The extra expense made the embalming and a belated shipment impossible. It appears that under the laws of Tennessee the dead body of a convict after twenty-four hours is turned over to the anatomical board and may be dissected.

The declaration of the plaintiffs sets out in detail the circumstances and relationship of the parties to the deceased, and charges that the failure of the defendant company to deliver the message was willful, wanton, oppressive, and the product of the grossest kind of negligence. The declaration further avers that the mother and next of kin of Simon Teague had the absolute right to the possession of the dead body, the right to select the burying place and to bury their deceased relative, the right to view his remains and to have conducted the funeral and all ceremonies incident thereto, that the nondelivery of the message operated to deny the enjoyment of these legal rights, and as a result of which plaintiffs suffered inconvenience, anxiety, mental pain, sorrow, and suffering. The case was tried by the court and jury, and resulted in a verdict for the plaintiffs in the sum of four hundred dollars, from which this appeal is prosecuted.

In submitting the cause to the jury the court refused to grant a peremptory charge in favor of the defendant, and gave several instructions in behalf of the plaintiffs, authorizing the recovery of "actual damages," and telling the jury that in estimating the actual damages they could take into consideration such damages as the jury might find from the evidence the plaintiff had suffered by reason of being deprived of the right to view the remains of Simon Teague, to prepare his body for burial, to select the place of burial, and to bury the body. Instruction No. 1 for appellees is as follows:

"The court instructs the jury for the plaintiff that if they find from the evidence that the defendant accepted for transmission and delivery the message mentioned in the declaration as a common carrier of information for hire, and that defendant negligently failed to transmit and deliver same to the plaintiff within a reasonable time, and that as a proximate cause the plaintiff was then and there and thereby deprived of her right as next of kin to view the remains of the said Simon Teague, and to prepare the same for burial, and to select the place for burial, and to bury the same, then your verdict should be in favor of the plaintiff, for such actual damages as proved by the evidence."

Appellant contends that the refusal of the court to grant a peremptory instruction and the granting of the several instructions for the plaintiffs constitute error.

Case reversed.

J. B. Harris and O. A. Luckett, for appellant.

Geo. L. Teat, for appellee.

STEVENS J. SMITH, C. J. concurring. ETHRIDGE, J. concur.

OPINION

STEVENS, J.

Appellee Lucy Jane Teague is the mother, and the other appellees are the next of kin, of Simon Teague, deceased. They instituted this suit against the Western Union Telegraph Company for the alleged negligent failure of the defendant company to deliver a telegram. Simon Teague, while an inmate of the state penitentiary at Nashville, Tenn., died of tuberculosis. The warden of the penitentiary thereupon filed with the Western Union Telegraph Company the following message, addressed to the mother, Lucy Jane Teague, at McAdams, Miss.:

"Simon Teague dead. What disposition shall we make of body? Answer."

This message was filed with the company at 4:55 p m., Saturday, November 6, 1915, and was promptly transmitted over the wires of the Western Union to, and arrived at, Winona, Miss., about 5:17 p. m., as shown by the face of the message. When the message was given the defendant company, the tariff book of the company showed that the Western Union Telegraph Company had connection with the little station of McAdams by telephone from Winona, and in receiving the message the company charged and received eighteen cents for the extra telephone service. The mother and relatives of Simon lived in sight of the railroad at McAdams station, and there is therefore no contention in this case that the sendee of the message was not known to the company or could not be found. The message was not forwarded from Winona to McAdams, either over the wire of the Western Union or the Cumberland Telephone Company, and the only delivery was by mail. The young lady who received the telegram at Winona testified that she called up the long-distance office of the Cumberland Telephone Company in an attempt to transmit the message from Winona to McAdams, but was advised that the Cumberland Telephone & Telegraph Company had discontinued service to McAdams. The agent then forwarded a service message...