Western Union Telegraph Co. v. Norman

Sykes, J., delivered the opinion of the court. The appellee instituted suit' in the circuit court of Forrest county against the appellant for the sum of thirty-five dollars as actual damages and one thousand, five hundred dollars punitive damages for the alleged negligent failure to properly transmit and promptly deliver a telegram sent by appellee from Akron, Ala., to his wife in Hattiesburg, Miss., which reads as follows: “Akron, Alabama, July 29th, 1916. “Mrs. M. L. Norman, West Pine Street, Hattiesburg, Mississippi. Do not catch train for Tuscaloosa. [Signed] M. L. Norman.” In the transmission of the message the agents of the appellant company changed the name of the addressee to Mrs. M. L. Herman. Because of this mistake the message was not delivered to Mrs. Norman and in fact was not delivered at all until several days later, when the appellee went to the telegraph office, and, after some discussion with the agent of the appellant at Hattiesburg, the message was then delivered to him. Mrs. Norman made the trip to Tuscaloosa, and the actual -expenses of .this trip amounted to thirty-five dollars which were paid by the appellee. In another suit Mrs. Norman recovered the actual damages sustained by her because of this mistake. There were a number of special pleas filed in this case, and it seems from the record that demurrers were filed and sustained to all of these special pleas. The [137] second plea of the appellant company alleged, in substance, that the message in question was delivered to and accepted by the appellant company subject to the terms of a certain contract in writing, a copy of which is attached and made a part óf this plea; that one of these terms and conditions is that the company should not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message beyond the amount received for sending the same, and that the message in this case was an unrepeated message; that by the Act of Congress approved June 18, 1910 (36 Stat. 539, chapter 309) the Congress of the United States assumed charge of regulating the field of interstate communication by telegraph, and conferred upon the Interstate Commerce Commission full power over the rates, charges, and practices of telegraph companies engaged in interstate commerce with reference to such interstate commerce, and conferred on the Interstate Commerce Commission power to approve, alter, or acquiesce in existing rates and classifications; that the Interstate Commerce Com mission prior to the filing of the message in question had approved the rates of the appellant company, and for these reasons that the stipulations in the contract, subject to which the message was accepted which limited the defendant’s liability to the price of the message, were reasonable, and valid and binding. The record does not show that a demurrer was filed to this plea, neither does it show7 that issue was taken upon it, but from the entire record it is apparent that the case was tried upon the assumption that this plea was insufficient as a matter of law. In fact at the time of the trial of -the case of Dickerson v. Western Union Tel. Co.., 114 Miss. 115, 74 So. 779, and Warren-Godwin Lumber Co. v. Postal Tel. & Cable Co., 116 Miss. 660, 77 So. 601, the latest announcements of this court upon this question, expressly held that these [138] stipulations appearing upon the hack of the telegraph blanks were unreasonable and void, and the learned circuit judge followed the ruling as announced in thesce two cases in so holding in this case. The question was further submitted to the jury as to whether or not punitive damages could be recovered by the plaintiff. The jury rendered a verdict in favor of the plaintiff in the court below for four hundred and fifty dollars from which judgment this appeal is prosecuted. This court held in the case of Western Union Tel. Co. v. Showers, 112 Miss. 411, 73 So. 276, that Congress-by the act of June 18, 1910, had taken possession of the field of interstate commerce by telegraph to the exclusion of thé power of the state to legislate with reference thereto. This decision was subsequently overruled by the Dickerson case supra. The question decided in the case of Warren-Goclwin Lumber Company, supra, is the indential question now before us, namely, whether or not liability of the telegraph company for a negligent error in sending an unrepeated message would be limited to the amount paid for the transmission of the message in accordance with the stipulation contained on the telegram. This court, following its decision in the Dickerson Case, held that this stipulation was void. This Warren-Godwin Lumber Co. Case has been lately decided by the - supreme court of the United States, and the judgment of this Court is by it reversed. 250 U. S. —, 40 Sup. Ct. 69, 64 L. Ed. —. In this opinion the supreme court of the United Statesc holds that the act of 1910 “was intended to control telegraph companies by the Act to Regúlate Commerce,” and that this act subjects telegraph companies “as to their interstate business to the rule of equality and uniformity of rates which it was manifestly the dominant purpose of the Act of Regulate Commerce to establish, a purpose which would be wholly destroyed if . . . the validity of contracts made by telegraph [139] companies as to their interstate commerce business continued to be subject to the control of divergent, and it may be conflicting, local laws.” This opinion holds that the stipulation in the contract above referred to is a valid and binding one. Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883. In the Primrose Case “it was held that such a contract was not one exempting the company from liability for its negligence, but was merely a reasonable condition, appropriately adjusting the charge for the services rendered to the duty and cesponsibiity exacted for its performance. This decision further holds that under the Act to Regulate Commerce above referred to telegraph companies are empowered “to establish reasonable rates, subject to the control which the act . . . exerted;” “that the power thus given, limited, of course, by such control, carried with it the primary authority to provide a rate for unrepeated telegrams and the right to fix a reasonable limitation of responsibility where such rate was charged, since, as pointed out in the Primrose Case, the right to contract on such subject was embraced within the grant of the primary rate-making power. ’ ’ Since the telegram in this case was interstate commerce, the rights and liabilities in connection therewith depend upon the acts of Congress, the contract contained on the telegraph blank (if such be the case), and the common-law principles accepted and enforced by the federal courts. Southern Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197. Whether or not the plaintiff is entitled to recover punitive damages in this case is to be governed by the law announced by the United States Supreme Court. Byers’ Case, supra. In the case of Railroad Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, the leading case of that court upon the sub [140] ject of the recovery of punitive damages, it is held that punitive damages are not recoverable against the principal unless the principal praticipated in the wrongful act of the agent, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed. The testimony in the case at bar shows that the telegram was correctly transmitted to the 'New Orleans relay office of the telegraph company, that it was incorrectly transmitted from New Orleans to Hattiesburg, that the agent at Hattiesburg requested the New Orleans agent to know if the addressee was correctly named, and that the New Orleans office stated that she was. Even if we assume that this conduct of the New Orleans agent showed a reckless disregard of the rights of the appellee, at the same time the testimony fails to show that the principal participated in the wrongful act, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed: It follows that the special plea referred to is a good plea as a matter of law. The cases of Dickerson v. Western Union Tel. Co., 114 Miss. 115, 74 So. 779, and Warren-Godwin Lumber Co. v. Postal Tel. & Cable Co., 116. Miss. 660, 77 So. 601, or such parts of them as are in conflict with this opinion, are hereby expressly overruled. Reversed and remanded.