Western Union Telegraph Co. v. Bourn

Sm:ith, C. J., delivered the opinion of the court. The appellee sued the appellant in the court below for negligence in the transmission of a telegram. It appears both from the declaration and the evidence that Robertson delivered to the defendant at Columbia, Miss., a message for the appellee at Mooring Port, La., reading as follows: “Lizzie doing fine. Whats the trouble can’t get any hearing. ’ ’ As delivered to the appellee by the defendant it reads: “Lizzie dying from whats the trouble can’t get any hearing. ’ ’ Lizzie was the wife of Robertson, the sister of the appellee, and -Was then in a hospital at Columbia. On receipt of this message the appellee went to Columbia, found his sister doing well, and returned to Moorings Port. The recovery sought by the appellee is for the expense incurred by him in going to and returning from Columbia, amounting to thirty-five dollars and fourteen cents, and compensation for the mental anguish the mistake in the telegram occasioned him. The judgment rendered is for one thousand dollars. [74] The appellant by a special plea denied the appellee’s right„ to recover for the reason that the message was not repeated, one of the provisions of the contract between the • appellant and the sender- of the telegram being that;— “The company shall not be liable for mistakes . . . in the transmission ... of any unreuea-ted telegram beyond the amount received for sending same.” A demurrer interposed to this plea by the appellee was sustained. The appellant’s requests for a directed verdict and for an instruction eliminating mental anguish from the jury’s consideration were'refused. Counsel for the appellee admit that the case is governed by the federal statutes and the common law as administered‘by the federal courts (Postal Tel. Co. v. Warren-Godwin Lbr. Co., 251 U. S. 27, 40 Sup. Ct. 69. 64 L. Ed. —; Western Union Tel. Co. v Peter Boegli, 251 U. S. —, 40 Sup. Ct. 167, 64 L. Ed. — ), and that consequently the appellee is not entitled to recover for mental anguish (So. Exp. Co., v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197). They claim, however, that the appellee is entitled to -recover, the expense incurred by him in going to and returning from Columbia, and offer to. remit all of the damages awarded to him in the court below in excess thereof. The right of the appellee.to recover this expense depends upon whether or' not the provision of the contract between the appellant and the sender of the telegram limiting the appellant’s liability for an unrepeated message to the amount received for sending it is binding on the sendee. This question has never been expressly decided bv the supreme court of the United States'; consequently we must decide it in accordance with the rulings of this court in Clement v. Tel. Co., 77 Miss. 747, 27 So. 603; Hartzog v. Tel. Co., 84 Miss. 448, 36 So. [75] 539, 105 Am. St. Rep. 459, and D. Collotta v. Western Union Tel. Co., 83 So. 401. It does not clearly appear from the official report of the first-named case that the plaintiff Clement was the sendee of the message,' bnt it does so appear from the report thereof in the Southern Reporter. Two of the cases cited with approval • by the supreme court of the United States in Postal Tel. Co., v. Warren-Godwin Lbr. Co., supra, are Gardner v. Tel. Co., 231 Fed. 405, 145 C. C. A. 399, and Western Union Tel. Co. v. Bank of Spencer, 53 Okl. 398, 156 Pac. 1175, in both of which the sendee was held bound by the contract between the telegraph company and the sender of the telegram. It follows from the foregoing views that the appellee is not entitled to recover the expense incurred by him on account of the mistake in the transmission of the telegram, and that the demurrer to the appellant’s special plea should have been overruled. . Reversed and remanded.