Burleson v. Thomas

Sam 0. Cook, P. J., delivered the opinion of the court. Many pleas, demurrers,' and motions Aver filed in this case, but Ave will pass them by and briefly state the facts [737] developed at tlie trial. Tlie plaintiff liad a son, who was a student at the Agricultural and Mechanical College at Starkville, in this- state. At 9 o’clock p. m., October 5, 3.918, the resident physician at the college filed with the agent of the Western Union Telegraph Company, to be transmitted to the plaintiff, a telegram in these words: “Yonr son lias pneumonia.” This telegram Avas not delivered to Mr. Thomas until Monday afternoon, October 7th. This suit Avas based upon the facts stated. It does not appear that there Avas any money loss to the plaintiff on account of the delay. The jury returned the following verdict: “We, the jury, find for the plaintiff, and assess his actual and punitive damages at the sum of one thousand four hundred fifty dollars.” It appears from the evidence that the agent at Stark-ville promptly transmitted the message to the office of the ' company at Memphis, Tenn. AVe believe that this Avas an interstate message under the facts of the case, according to a recent decision of the supreme court of the United States. We here quote in full the opinion the supreme court rendered October 25, 1920, in the case of Western Union Telegraph Co. v. Addie Speight, 253 U. S. -, 41 Sup. Ct. 11, 65 L. Ed. -, viz: “This is a suit brought in a state court by. the respondent against the petitioner, the telegraph company, to recover for mental suffering caused by a mistake in delivering a telegraphic message. The message handed to the defendant was: ‘Father died this morning. Funeral tomorrow, 10:10 a. m.’ — and Avas dated January 24. As delivered to the plaintiff on January 24, it was dated January 23, and thus caused her to fail to attend the funeral, which otherwise she would have done. The message was from Greenville, N.'C., to Rosemary, in the same state, and was transmitted from Greenville, through Richmond, Va., and Norfolk, to Roanoke Rapids, the delivery point for Rosemary, . . . and the company defends on the [738] ground that the message was sent in interstate commerce, and that therefore a suit could not be maintained for mental suffering alone. Southern Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197. The jury found that the message was sent out of North Carolina into Virginia for the purpose of fraudulently evading liability under the law of North Carolina, and gave the plaintiff a verdict. The presiding judge then set the verdict aside ‘as a matter of law’ and ordered a non-suit. But on appeal the supreme, court of the state set aside the nonsuit and directed that a judgment be entered on the verdict. ' “We are of opinion that a judge presiding at the trial was right and that the supreme court was wrong. Even if there had been any duty on the part of the telegraph company to confine the transmission to North Carolina, it did not do so. The transmission of a message through two states is interstate commerce as a matter of fact. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 23 Sup. Ct. 314, 47 L. Ed. 333. The fact must be tested by the actual transaction. Kirmeyer v. Kansas, 236 U. S. 568, 572, 35 Sup. Ct. 419, 59 L. Ed. 721. As the line was arranged and had been arranged for many years, ever since Roanoke Rapids had been an independent office, Richmond was the relay point from Greenville to the latter place. The message went through Weldon, and was telegraphed back from Richmond, as Weldon business also- was. It would have been possible, physically, to send direct from Weldon, but would have required a rearrangement of the wires and more operators. The course adopted was more convenient and less expensive for the company, and there was nothing to show motives except the facts. As things were, the message was sent in the quickest way. The court below did not rely primarily upon the finding of the jury as to the purpose of the arrangement, but held that when, as here, the termini were in the same state, the business was intrastate, unless it was necessary to cross the territory of another state in order to reach the final point. [739] This, as we have said, is not the law. It did, however, lay down that the harden ivas' on the' company to show that what was done Svas not done to evade the jurisdiction of the state.’ If the motive weye material, as to which we express no opinion, this again is a mistake. The burden Avas on the plaintiff to make out her case. Moreover, the motive would not have made the business intra-' state. If the mode of transmission adopted had been unreasonable as against the plaintiff, a different question would arise; but in that case the liability, if it existed, Avould not be a liability for an intrastate transaction that never took place, but for the unwarranted conduct and the resulting loss.” Reversed and remanded!.