Western Union Telegraph Co. v. Meek

Stevens, J., delivered the opinion of the court. The judgment rendered by the lower court in this cause was affirmed on a former day of this term. On consideration of the suggestion of error, we are driven to the conclusion that the case must be reversed, unless we overrule prior decisions of our court. The facts, briefly stated, are as follows: On June 18, 1915, Sterner Meek, at Tunica, Miss., sent the following message: “Seth A. Meek, Columbus, Miss.: Come to Tunica for 'week-end house party, if possible. Leave Columbus tonight, and come via Winona and Memphis. Wire answer. . • Sterner. “Do come. Miss Abbay.” The office of the Western Union Telegraph Company at Tunica was closed for the night at the time Mr. Meek desired to deliver the message to the telegraph company, so he delivered the message to the long-distance telephone operator for the Cumberland Telephone Company at Tunica, who phoned the message to the Western Union Telegraph Company at Memphis, and the telegraph company at Memphis, Tenn., accepted the message for transmission to Columbus, Miss. The message was transmitted by the Western Union Telegraph Company to Jackson, Miss., and received by the Jackson, Miss., office at eight forty-four p. m. the same night it was forwarded. The message was received at Jackson by Miss Peters, the night clerk, who, finding that Columbus, Miss., office was closed for the night, called Seth A. Meek, the sendee, over long-distance telephone at Columbus, Miss. Miss Peters was unable, it seems, to get Seth A. Meek at the other end of the line, but one Mr. Holesapple answered the long-distance call at Columbus and advised Miss Peters that Jie could take the message and deliver the same to Mr. Meek. Thereupon Miss Peters delivered Holesapple the written message over the telephone and marked the written message at Jackson as “Delivered.” [89] It appears that Miss Peters considered the message delivered. Holesapple did not deliver the message to Seth A. Meek until the next morning, when he advised Mr. Meek that the Jackson, Miss., office had called him over the long-distance telephone the night before and had a message for him in reference to a house party. Mr. Meek then went to the local office of the Western Union Telegraph Company at Columbus, and asked for the message. The'Columbus office thereupon advised Mr. Meek that they had not received a message and had no message to deliver. This action was thereafter instituted by Seth A. Meek for the recovery of one thousand dollars punitive damages and twenty-five dollars as the statutory penalty for failure to deliver the message within a reasonable time. On the trial of the case the court granted a peremptory instruction in favor of the defendant as to any punitive damages, but gave a peremptory charge in favor of the plaintiff as to the statutory penalty of twenty-five dollars. Prom the judgment awarding plaintiff the statutory penalty, the telegraph company prosecutes this appeal. By reference to chapters 76 and 78, Laws of 1908, it will be seen that there are now two statutes imposing penalties on telegraph companies. Chapter 76 is as follows: “ Section 1. Be it enacted by the legislature of the state of Mississippi: A telegraph or telephone company shall deliver all messages adressed to a person residing or having a place of business in any city, town, or village where it may have an office, or within one mile of its office; and if any telegraph or telephone company shall receive any message or matter for transmission, and shall fail, neglect, or refuse, without good and sufficient reason, to transmit correctly or deliver the same within a reasonable time to the person addressed, such person, or the person injured, shall be entitled to recover of the company in default the sum of twenty-five dollars, in addition to damages for any injury. ’ ’ [90] “See. 2. That this act shall take effect and be ih force from and after its passage. ’ ’ “Approved March 20, 1908.” The manifest purpose of this statute is to penalize telegraph companies for failure to deliver a message after it has been received at the office of the sendee. The other statute (chapter 78) imposes a penalty of fifteen dollars for delayed transmission. Counsel for appellee in his reply to the suggestion of error admits that this suit is not “for a delay in transmission,” but “for negligence and gross failure to deliver at all.” It is elementary that a penal statute must be strictly construed. Bearing this in mind, we are confronted with a state of facts showing conclusively that the message in this ease never did reach Columbus over the wires of the Western Union Telegraph Company. It is the contention of appellee that the message reached Columbus by telephone, and that therefore the statute against failure to deliver is violated. The fact is, however, that the message was transmitted over the wires of the Western Union Telegraph Company to Jackson, and there stopped so far as any transmission by telegraph is concerned. The effort of Miss Peters to phone the message was not in fact a sending of the message into Columbus over the wires of the Western Union. The parties in this case had no contract with the Cumberland Telephone Company whereby the message was to be sent from Jackson to Columbus by telephone, and the effort of the plaintiff in this case is not to hold the telephone company liable, but to recover from the telegraph company. There is a material difference in the system employed by telegraph and telephone companies. The well-known system employed by the telegraph company is to send the message to the office of the telegraph company where the sendee resides or is to be found, and the operatives there are charged with the duty, of receiving the message, of writing it out, keeping a record of it, and of delivering to the sendee the written message itself. If [91] this system had been complied with in the instant case, the Colnmbns office would have received this message, made a record thereof, and been in position to deliver Mr. Meek a copy. By this system there is private and confidential communication between sender and sendee, and by this system there is manual delivery of the written message to the sendee personally. One statute penalizes a delay in transmission, and another statute, the one here invoked, is designed to penalize the telegraph company for delays incurred at the office of delivery, after the message has been correctly transmitted to the place of delivery. The statute relied on here strikes at the negligence of the operatives at office of delivery. So we have a case where admittedly the Colum'bus office of the Western Union never in fact received a message which could there be delivered. - There is no liability whatever for the twenty-five dollar penalty. Disposition of this appeal is controlled by the cases of Marshall v. Telegraph Co., 79 Miss. 160, 27 So. 614, 89 Am. St. Rep. 585; Telegraph Co. v. Hall, 79 Miss. 623, 31 So. 202, and Telegraph Co. v. Ross, 111 Miss. 649, 71 So. 904. The suggestion of error will be sustained, the judgment of the learned circuit court reversed, and judgment entered here in favor of appellant. Beversecl, and judgment here. Sykes, J., being of connsel in the trial court, took no part in this decision.