Western Union Telegraph Co. v. Teague

Stevens, J., delivered the opinion of the court. 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.” — 407 — 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 Mc-Adams 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 Mc-Adams, 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 ap-pellee 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 Com — 408 — pany 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 Tele-, phone 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 — 409 — the expense of shipment; and that this was all the money she had or was able to secure or borrow. When, there- . fore, 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 — 410 — 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 well illustrated the basis of the plaintiff’s alleged right to recover. This instruction reads: “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. It will avail little to discuss at length the legal status of a dead body. Under the English jurisprudence authority over the dead was originally intrusted to the ecclesiastical courts. The evolution of the law on this subject is shown in a most learned fashion in the report of Samuel B. Buggies, referee — In re Beekman Street, 4 Bradf. Sur. (N. Y.) 503 — where the right to preserve the remains and bury a corpse is held to be a legal right which the courts will recognize and protect, and that this right belongs exclusively to the next of kin. One of the leading cases in America is Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370, where it is said: — 411 — “This whole subject is only obscured and confused by discussing the question whether a corpse is property in the ordinary commercial sense, 'or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right, by mutilating or otherwise disturbing the body, is an actionable wrong. ” . It is said in the later Minnesota case of Beaulieu v. Great Northern Railroad Co., 103 Minn. 47, 114 N. W. 353, 19 L. R. A. (N. S.) 564, 14 Ann. Cas. 462, that: “The rule laid down in the Larson Case expresses the modern view of the question, and extends a remedy where otherwise none would exist. There being no property in dead bodies, and the wrong complained of being only the invasion of an intangible legal right, no actual damages for the wrongful mutilation of the body can be recovered, and the courts award solatium for the bereavement of the next of kin as the only appropriate relief. Without the element of mental distress, the action would be impotent of results, and of no significance or value as a remedy for the tor-tious violation of the legal right of possession and preservation.” It was indeed held by a divided court in the case just quoted from that this rule had no application to actions for breach of contract, and for that reason the plaintiff, as against the railroad company in that case, was not permitted to recover. The present action is not an action for the breach of a contract, but is an action sounding in tort. The mother of the dead boy is here the sendee of the message. Appellant is a common carrier engaged in the business of transmitting intelligence by wire. Without a sendee of a message, there would be no message to send. Without a message to transmit, there would be no telegraph company. The essential purposes for which appellant — 412 — company is chartered and does business impose the duty of transmitting and delivering the message to the sendee and of performing this duty with reasonable diligence and accuracy. The facts of this case, in our judgment, would authorize the jury to inflict punitive damages. We cannot say that the jury in this case allowed exemplary damages or regarded their verdict as in any wise a punishment. The plaintiff did not secure an instruction from 'the court expressly authorizing the jury to inflict punitive damages; but, on the contrary, instruction No. 6, granted the defendant, told the jury that they could not find punitive damages. Other instructions for the defendant advised the jury, also, that the plaintiff had no cause of action for “any damages arising from mental anguish or distress.” The case was ’ not tried upon a correct theory of the law, and the instructions given for both parties wore not properly and legally grounded. The instructions for the plaintiff did not state as a prerequisite for recovery that the jury must believe the negligence of the defendant was willful or wanton or oppressive, or even to the degree of gross negligence. They simply state that if the jury believe that as a result of the nondelivery of the telegram the legal rights of the plaintiff were violated — that is to say, the mother’s legal right to the possession of the corpse, to view the remains, to select the last burying place, and to bury her dead boy — then plaintiff could recover . such actual damages as the jury thought plaintiff had suffered. The proof does not show any lo°ss to plaintiffs in terms of dollars and cents. The most that could be said in that regard is that plaintiff suffered inconvenience, the trouble and annoyance of attempting to borrow funds, and of sending an additional telegram. There is evidence, however, tending to show that the mother had the greatest affection and solicitude — 413 — for her wayward hoy, that she was in constant communication with him, that she expected' his ■ death, that she earnestly desired that his body be shipped back to the old burial ground for interment, that she had accumulated her small earnings for the express purpose of paying the necessary expense, and that she suffered greatly as a result of her inability to have the corpse shipped and decently buried. It is settled law in our state, based principally upon the rule in Telegraph Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300, that damages for mental pain and suffering cannot be awarded as the result of simple negligence. But where there • is a willful wrong, or “willful disregard of the rights of” the plaintiff, warranting the imposition of exemplary damages, the Bogers Case “has no application.” Telegraph Co. v. Watson, 82 Miss. 101, 33 So. 76. Indeed, the opinion in the Eogers Case noted and preserved the distinction. It expressly held that “in cases of willful wrong, especially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party,” there could, be a recovery for mental suffering. Under the facts in the - present case, if the telegram had been delivered, the mother would have had possession of the corpse, and there would have been no suffering as a result of her failure to .obtain possession of the corpse. It must be conceded, then,’ that the natural and proximate result of the failure of the telegraph company to deliver the telegram in this case was to deny to the plaintiffs the enjoyment of their .legal rights. There is an attempt to answer this argument by the assertion that the telegraph company had nothing to do with the corpse, that it did not have possession of the corpse, that it did not mutilate the same, and that it .did not deny the possession to any one. This argument begs the main — 414 — question. It is true that appellant did not have possession and'did not mutilate. Neither is the telegraph company a party to a contract made by sender and sendee of a commercial telegram; but the failure" to deliver a message in reference to an important business matter frequently results, necessarily, in actual damages. The main inquiry in this case is whether appellant is guilty of such gross negligence from which willfulness may be imputed. The facts, in our opinion, warrant the submission of this issue to the jury. The jurors, as reasonable men, might well conclude that appellant is here convicted of the grossest kind of negligence, negligence so gross as to evince an absolute ignoration of plaintiff’s rights, negligence tantamount to willfulness. It is conclusively shown that the message reached Winona promptly, and might have promptly concluded its journey, if appellant company had condescended to employ the agency of its competitor, the Postal Telegraph-Cable Company. The evidence shows that it knowingly declined to send the message on from Winona by means of the Postal Company and the telephone line then being freely and almost daily used by the Postal from Kosciusko to McAdams. Its sole defense seems to be that its friend and ally, the Cumberland Telephone & Telegraph Company, was no longer doing business at McAdams, and for that reason alone appellant could not perform its contract. The operator at Nashville accepted an extra charge of eighteen cents for the telephone service from Winona. In accepting the message, then, the servants of appellant knew that the Western Union wire did not run to McAdams. With this knowledge, it undertook for extra compensation to put the message into McAdams." The proof shows that it could have done so by engaging the services of the Postal Telegraph Company. Its response to this cause of action then is: — 415 — “I could not perform, because I could not afford -to let my competitor have' a part of the small compensation here collected for this service.” This does not amount to exoneration. It is 'rather an admission of a default knowingly permitted. This was a message, of extraordinary interest to the sendee and the sendee’s family. The message on its face gave notice of death and the inquiry as to what disposition is to be made of a corpse. Its urgency was obvious to the company. The jury, then, would he justified in inflicting punitive damages. But it is suggested that the case should he reversed, and judgment entered here, because the plaintiff did not have the issue of punitive damages submitted. We do not think appellant is in a position to make this contention. There must' he a common-sense rule in ■the administration of justice. We do not believe it is radical to hold that the legal rights' of the mother and next of kin have been violated. If these intangible legal rights have been invaded, and this as the result of the willful wrong of the defendant, a recovery of damages for mental suffering should be permitted.' It will profit little to discuss the question whether the allowance for mental suffering would be compensatory or punitive. The plaintiff, we think, had the right in this case to submit the issue of punitive damages to the jury, and in connection therewith and as a part thereof to claim damages for mental suffering, because the act complained of grows out of a right protected by the law. It is stated by Mr. Hale in his work on Damages (Hornbook Series): “While compensation for mental suffering alone cannot be recovered, where .the same act that causes mental suffering also injuries plaintiff in respect to a right protected by law, as in regard to his person, property, or reputation, the law, in redressing such injury, will also award to plaintiff a suitable compensation for his mental suffering, considered as an — 416 — inseparable part of the general result of the tort against him.” Page 155. -“For breach of an undertaker’s contract to keep safely the body of plaintiff’s deceased child, it was held that damages could be recovered for mental anguish. So, too, where there was a breach of contract to bury a child in a proper manner, damages for mental anguish were allowed. Damages for mental anguish have also been allowed for breach of contract to transport a corpse” — referring to cases in -the footnotes, page 163. The cases cited by Mr. Hale go further, perhaps than our court has ever gone, or than it is necessary to go in this case. As- stated, this is not an action for the breach of a contract but for a willful tort. Recovery in such cases has always been allowed in Mississippi. Alabama & V. R. Co. v. Hanes, 69 Miss. 160, 13 So. 246; Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Magouirk v. Telegraph Co., 79 Miss. 632, 31 So. 206, 89 Am. St. Rep. 663; Telegraph Co. v. Watson, supra; Hartzog v. Telegraph Co., 34 So. 361; Railroad Co. v. Hawkins, 74 So. 775, L. R. A. 1917D, p. 977. In the last-named case there was a willful neglect of duty by a carrier to its passenger, .Miss Hawkins, and a recovery for mental pain and suffering. The opinion concludes: “The case being one that justifies the infliction of exemplary damages, recovery for mental pain and suffering shown by the evidence was proper” — citing numerous authorities. There is no decision of our court in which a recovery of damages for mental suffering has been denied, where there was gross negligence tantamount to willfulness. There are cases in which recovery of punitive, damages and damages for mental suffering were denied, but they are differentiated on the facts. The case of Telegraph Co. v. Koonce, 72 So. 839, is one of the cases where the court upon the facts held — 417 — that the infliction of punitive damages was not justified. So, also, in the case of Telegraph Co. v. Spratley, 84 Miss. 86, 36 So. 188. The degree of negligence is again commented upon by the court in Telegraph Co. v. Ragsdale, 111 Miss. 550, 71 So. 818. In the last-named case the court, by Holden, J., says: “Nor can he recover for such mental.pain and suffering in the instant case as a part of punitory damages, because the facts are not such as justify the infliction of punitive damages.” The present case in its essential features is aldn to that of Hartzog v. Western Union Telegraph Co., supra. In the Hartzog Case the declaration charges willful negligence and failure to transmit and deliver a message, as a consequence of which plaintiff: was denied his right to see his dead sister.and to attend her funeral, which failure resulted in mental pain and anguish. There was no actual damage in terms of dollars and cents alleged or shown. The court, by Wéiteield, Chief Justice, held that: “The case of Betsy Watson v. Western Union Telegraph Co., 33 So. 76, controls this case.” Eecovery for gross negligence is sanctioned, also, in the case of Steinberger v. Telegraph Co., 97 Miss. 260, 52 So. 691, the decision of which was recently approved in Johnson v. Western Union Telegraph Co., 76 So. 738. The kind of mental suffering here sued for is not something visionary, or the product of too sensitive a mind. The right of the appellee to take possession of the dead body of a member of her family, to have a funeral service according to the highest expressions of a Christian civilization, and to control the place of interment, are sacred rights. Society, and indeed the government, is founded upon the home, and 'the ties that bind members of the family circle one to the other are indeed blessed. The plaintiffs, then, were within the law in attempting to have the body of Simon Teague shipped and interred, — 418 — and tiie natural consequences of appellant’s gross negligence in this case produced the kind of suffering which any family would experience whose circle is broken by death. In the Buggies report, frequently quoted with approval, it is said: “The establishment of a right so sacred and precious, ought not to need any judicial precedent. Our courts of justice should place it, at once, where it should fundamentally rest forever, on the deepest and most unerring-instincts of human nature, and hold it to be a self-evident right of humanity, entitled to legal protection, by every' consideration of feeling, decency, and Christian duty. ’ ’ There are numerous states that have adopted the so-called “Texas doctrine” and freely allow damages for mental pain and anguish for failure to deliver a telegram. These cases we do not refer to for the obvious reason that our court has declined to follow the Texas rule on this subject: We still adhere to that rule, but in doing so we do not understand that our court has ever gone to the extent of denying relief in a suit of this kind, sounding in tort and reflecting a willful ignoration and disregard of lawful rights. •The case must be reversed, because the law was not ■properly given in charge to the jury. The jury should determine ordinarily the degree of negligence, and the question whether the facts of this case constitute gross negligence from which willfulness will be inferred is a question the jury should answer under proper instructions from the court. If the jury believe from all the facts that appellant is guilty of willful neglect, then under proper instructions they may not only bring in a verdict for punitive damages, but may also assess damages for the mental pain and suffering experienced by the plaintiff. Surely in a ease of willful neglect the defendant carrier will not be heard to say that the plaintiff’s demand is ethereal, visionary, or speculative, especially when intangible legal rights are violated. Reversed and remanded.