Hilley v. Western Union Telegraph Co.

Calhoon, J., delivered the opinion of the court. Mr. Hilley was a commercial traveler, with his home at Sugar Valley, Ga., where his family was, and, as part of it, a sick child. On August 11, 1903, being at Meridian, Miss., he wired his wife at Sugar Valley: “Wire me, McOomb City, Miss., how sick are.” Mrs. Hilley promptly received this message, and on that day, August 11th, wired him, directing the message to McOomb City, “Sick are no better;” and this message was duly transmitted to McComb City, but not delivered, because Mr. Hilley was not there. In fact, after wiring this dispatch to his wife, he had an order to go to Vicksburg, and so could not go to McComb City. Because of this change in his itinerary, he, on that same August 11th, wired appellee’s manager at McComb City: “Forward all telegrams for me to Vicksburg, Miss.” This message is tbe cause of the trouble. It was the custom of the company, un [70] known, however, to appellant, to send dispatches from Meridian to McComb City by way of New Orleans, La., as the most expeditious and convenient way on their line, New Orleans being a relay station and repeating the messages. But in this instance, by some oversight, it did not repeat the message in question to McComb City. In this situation Mr. Hilley, anxious about his child, went often, on August 12th, to the Vicksburg office to inquire for the telegram he had ordered forwarded, but, of course, there was none there, and, instead of wiring from that office direct to Sugar Valley, as he might have done to relieve his uneasiness, he took a train and went there. He claims the expenses of that journey to and fro, to which we do not think he is entitled, as part of his actual damages, and also for the statutory penalty under Code 1892, § 4326. The court below refused both, and gave him judgment for only the cost of his telegram to the manager at McComb City, which was not repeated from New Orleans. The refusal of the expenses of his journey is assigned as error, but not urged in the brief of counsel for appellant, which is confined to a very perspicuous and strong argument that their client is entitled to the penalty. But this court is thoroughly committed to the view that the statute “limits the penalty as to transmission to transmitting incorrectly.” Marshall v. Telegraph Co., 79 Miss., 162 (27 South., 614; 89 Am. St. Rep., 585); Telegraph Co. v. Hall, 79 Miss., 623 (31 South., 202); Telegraph Co. v. Pallotta, 81 Miss., 216 (32 South., 310). We do not decide whether or not, in the particular case before us, the statute is unavailable because an interference with interstate commerce, as argued by counsel for appellee on the basis of Marshall v. Tel. Co., 79 Miss., 154 (27 South., 614; 89 Am. St. Rep., 585); Alexander v. Telegraph Co., 66 Miss., 161 (5 South., 397; 3 L. R. A., 71; 14 Am. St. Rep., 556); Hanley v. Ry. Co., 187 U. S., 617 (23 Sup. Ct., 214; 47 L. ed., 333); and other cases. Affirmed.