Western Union Telegraph Co. v. Robertson

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment awarding appellee damages for the failure on the part of appellant to promptly transmit and deliver a telegram. Appellee and her husband lived in the city of Natchez, Mississippi, but on the 1st day of September, 1912, she was in the city of New Orleans, at the home of her brother. She had with her a son, who was then supposed to be at the point of death. On that day, at about four o’clock p. m., she sent to her husband the following telegram: “J. J. Robertson, Na'tchez, Miss. ££ Willie has typhoid. You had better- come. Bring some money. £ £ [ Signed] Gussie. ’ ’ About sis o’clock the same afternoon, Mr. Robertson called up by telephone the office of the Western Union Telegraph Company at Natchez and gave to its local manager, Mrs. M. M. Abernathy, a telegram for transmission which, according to his testimony, was as follows : “Mrs. Gussie Robertson, 1016 Race Street, New Orleans, La. ££I will send some money Tuesday. ‘ ‘ [ Signed] Johnnie. ’ ’ Mrs. Abernathy states that she understood Mr. Robertson to say Ray street, so the telegram was sent to New Orleans, addressed to 1016 Ray street, instead of 1016 Race street. Upon receipt of the telegram at New Orleans, appellant’s employees in charge of that office ascertained by consulting the various city directories that there was no such street as Ray street in the city. The Natchez office was then requested by service message to furnish a better address. It does not appear [784] exactly when this service message was sent from New Orleans, or when it was received at Natchez. The testimony of the. New Orleans manager was that it was sent “at once” after it was ascertained there was no such street in New Orleans as Ray street. The testimony of Mrs. Abernathy, of the Natchez office, was that immediately upon receiving’ the service message she “got in communication with the party that sent the message over telephone and he said, ‘Oh! that was Race street, instead of Ray street.’ ” and that she then wired the New Orleans office the correct address. This conversation was denied by Robertson, who stated that, on the contrary, he called up appellant’s Natchez office on the morning of September 2d and was informed the'telegram has been delivered to the sendee on the day before. When the reply to this service message was sent to the New Orleans office does not appear from Mrs. Abernathy’s testimony, but according to the evidence of the New Orleans manager it was received in New Orleans on the morning of the 2d day of September, the hour not being given. After receipt of the correct address, the telegram was delivered on the morning of September 2d at ten-forty, a. m., according to the evidence of appellant, but, according to that of appellee, it may have been delivered an hour or more later. Mr. Robertson states that in giving this message to Mrs. Abernathy he spelled the name of . the street for her, “R-a-c-e-,” and that she repeated the name to him, pronouncing it Race street, but did not spell it. Mrs. Abernathy’s testimony is silent'with reference to the spelling of the name of the street by Robertson; but she states that she understood him to say Ray street, and repeated the message to him as she understood it. It will be observed that the sound of the words “Race street” and “Ray street” are very similar, and the one can easily be mistaken for the other. If appellant in [785] fact spelled the name out for Mrs. Abernathy, however, this criticism, of course, will not apply. Mrs. Robertson testified that she was in great distress of mind at the time she sent the telegram to her husband because of the fact that her child was dying; that she was away from home, without money to pay the expenses to be incurred in the event of his death; and that she expected her husband to come at once in response to her telegram, and that, in event he did not do so, she would hear from him, meaning, we suppose, that he would advise her why he did not come. Had Mr., Robertson left Natchez immediately upon receipt of his wife’s message, he could have arrived in New Orleans at twelve o’clock that night; the next train upon which he could have arrived being seven o ’clock the next morning. A relative of Mrs. Robertson met both these'trains, the morning train being late, so that this relative did not return to the home of Mrs. Robertson’s brother, where she was then visiting, until nine o’clock, a. m. When her husband did not come on either of these trains, and she did not hear from him, Mrs. Robertson, before receiving his telegram, according to her testimony, suffered great mental anguish, resulting practically in a nervous breakdown, from which she did not recover for some days. The contention of counsel for appellee is that she is entitled to recover in event the delay in delivering the telegram was the result of negligence in either the Natchez or New Orleans offices of appellant; but he states more than once, and that was evidently the theory upon which he proceeded in the court below, that the evidence — some of which we have omitted as having no possible bearing on the legal questions hereinafter discussed — demonstrates that the Natchez office received the telegram from Robertson over the telephone correctly ; that is, that Mrs. Abernathy made no mistake in the name of the street when she received the telegram [786] from Robertson over tbe telephone, but that she recived it as he gave it, Race street; that it was sent in the first instance to the New Orleans office with the proper address, that is, 1016 Race street; and that the failure to deliver until ten-forty the next morning was caused by the negligence of the New Orleans office. The evidence does not bear out this conclusion, but it is in accordance with what we have hereinbefore stated. The negligence in the New Orleans office, if such there was, consists of delay in delivering the message after the correct address was received. ' . By one instruction granted at the request of appellee the jury was authorized to award punitive damages in event the delay in delivering the telegram “was such as to amount in law to willful disregard of the rights of the plaintiff.” This instruction, in so far as recovery predicated upon negligence occurring in appellant’s New Orleans office is concerned, is clearly erroneous, for the rule in Louisiana, as we’ understand it, is that for a principal to be liable in punitive damages for an act of his servant he must have authorized or subsequently ratified the act of the servant complained of. This feature of the rule is not only omitted from the instruction, but the instruction would have been erroneous, even had it been included therein, for the reason that there is no evidence that the negligent conduct of those in charge of appellant’s New Orleans, office, if such in fact there was, was either authorized or approved by it. Ingram v. Railroad Co., 128 La. 933, 55 So. 580; Patterson v. Railroad Co., 110 La. 797, 34 So. 783. By another instruction requested by appellee the court charged the jury that, in event, they should believe from the evidence “that there was an unreasonable delay in delivering this telegram after its receipt in New Orleans, owing to the negligence of the New Orleans, La., office of the defendant, then they should find a verdict for the plaintiff, and may award her damages for sucb [787] mental pain and anguish, if any, which they may believe from the evidence the plaintiff suffered because of the unreasonable delay in delivery of said telegram.” As we understand the Louisiana law, mental anguish may constitute an element of damages in cases of this character (Graham v. Western Union Telegraph Co., 109 La. 1069, 34 So. 91); but we are also of the opinion that the rule in that state must be in accord with the practically universal rule governing the recovery of snch damages elsewhere: “That there can be no recovery on this ground, unless the telegraph company had notice, from the language of the message or otherwise, that by reason of its negligence such damages would be likely to result.” 37 Cyc. 1781. We have been referred to no Louisiana case so holding; but we do not understand counsel for appellee to contend that the rule is otherwise, hut that in his opinion the rule was herein complied with; that the two telegrams, when read together, sufficiently indicate that mental anguish would probably result from delay on the delivery of the second. With this conclusion we cannot agree. Admitting, for the sake of the argument, that if the second telegram indicated, or that if appellant had been advised, that it was sent in reply to the first, that the conclusion reached by counsel for appellee would necessarily follow, there is nothing in the telegram to clearly indicate it was in reply to the first, or that it was from the sendee' of the first to the sender thereof; and there is. no pretense that appellant’s employees at Natchez were advised that it was in fact a reply to the first telegram, or of the purpose for which it was sent. Reversed and remanded.