Opinion
No. 31683.
April 22, 1935. Suggestion of Error Overruled, May 20, 1935.
1. COMMERCE.
Telegram sent between two points within state through system of trunk lines extending out of state was an interstate message regardless of motive of company in establishing and maintaining trunk lines.
2. COMMERCE.
State's power to regulate interstate commerce was suspended when Congress transferred regulatory power to federal government (49 U.S.C.A., section 1 et seq.).
3. TELEGRAPHS AND TELEPHONES.
Under federal statute, addressee of telegram could not recover statutory penalty or damages for mental anguish resulting from employee's delay in transmitting interstate message, where delay was not authorized, participated in, or ratified by company (49 U.S.C.A., section 1 et seq.).
4. MASTER AND SERVANT.
To hold master liable for vindictive damages by virtue of ratification of servant's tort, some affirmative action by master must be shown.
5. TELEGRAPHS AND TELEPHONES.
Telegraph company's failure to refund charge for message was not a ratification of employee's delay in transmitting interstate message, and company was not liable to addressee, especially where there was evidence that employee was not negligent.
6. TELEGRAPHS AND TELEPHONES.
Telegraph company held not guilty of willful negligence, so as to be liable for damages for failure promptly to deliver death message, in failing to keep its employees in all its offices in United States informed of office hours of every office, since company was not under duty to perform such service.
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.
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 Fed. 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 Fed. 300; Corcoran v. Postal Telegraph-Cable Co., L.R.A. 1915B 552; Stansell v. Western Union Tel. Co., 107 Fed. 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 Fed. 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 Tex. 22[ 97 Tex. 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 Tex. 723[ 71 Tex. 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 Fed. 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.
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. 221, 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 damages as a punishment for the alleged willful wrong. The evidence for appellee was sufficient to show that the delay in the delivery of the message was the result of gross negligence on the part of appellant's employees in handling the same. That on behalf of appellant tended to show that there was no negligence in the handling of the message, that its office hours at Lake were from eight a.m. until five p.m., and no Sunday hours at all. In other words, its office at Lake was closed, under this rule, from the time this message was received on Saturday evening until eight the next Monday morning. The message was delivered about eight-thirty Monday morning. Appellant's agent at Meridian, on failure to deliver the message through the Jackson office, undertook on Saturday night to deliver it by telephone, but failed because appellee was without a telephone.
Under the Commerce Act of Congress of June 18, 1910 (36 Stat. 539), and amendments thereto (see 49 U.S.C.A., sec. 1 et seq.), Congress has occupied the entire field of interstate commerce. The result is that state authority on the subject has been suspended. The right of appellee to recover in this case must be determined by the act of Congress, and the governing principles of the common law applied in construing it. Under the federal rule, neither the statutory penalty nor damages for mental anguish alone can be recovered, nor can recovery be had for vindictive damages for the willful or gross neglect of the servants, unless the master expressly or impliedly participated in the wrongful act or by conduct authorized or ratified it before or after it was committed. Western Union Tel. Co. v. Wallace, 164 Miss. 759, 146 So. 142; Western Union Tel. Co. v. Speight, supra.
Was the retention by appellant of the forty-cent charge a ratification of the willful wrong of its servants, conceding there was such a wrong? To hold a master liable for vindictive damages by virtue of the ratification of the servant's tort, some affirmative action on the part of the master must be shown. Mere negation or absence of action, as by the retention of the servant, is not a ratification. 17 C.J., par. 291, p. 993. If appellant was due to refund the forty-cent toll, failure to do so was a mere negation, or absence of action, and, furthermore, if appellant's evidence was true, its servants were guilty of no negligence in failure to deliver the message, and therefore it had a right to retain the forty cents.
It is argued that appellant itself was guilty of willfulness or gross negligence in failing to keep its servants in all of its offices in the United States informed of the office hours of every other office; that if that had been done appellee's daughter would have adopted some other method of communicating with her mother than by telegraph. It was held in Given v. Western Union Tel. Co. (C.C.), 24 F. 119, that it was not the duty of the company to keep its servants in all of its offices in the United States informed of the office hours of every other office; that the immense number of offices it maintained and the frequent necessary changes in their hours would make it too onerous and inconvenient to be treated as a duty to its patrons for the neglect of which it would be liable in damages. The court said in that case that there was no more obligation to do this in regard to offices of the same state than those of the United States. To the same effect is Sweet v. Postal Tel. Cable Co., 22 R.I. 344, 47 A. 881, 53 L.R.A. 732, in which the principles declared in the Given case were referred to with approval.
It follows from what has been said that the judgment must be reversed. Under the record in this case, if there is any liability on the part of appellant it is for nominal damages and the forty-cent toll.
Reversed and remanded.