Western Union Telegraph Co. v. Ivy

SMITH McPHERSON, District Judge. C. M. Ivy brought Jhis action to recover damages for the failure to deliver a telegram' received by the company for transmission. In August, 1907, his son, Leo Ivy, 15 years of age, suddenly died on the streets of Terre Haute, Ind., where-the son was a stranger. The body was at once taken to the undertaking rooms of E. V. Sinclair of Terre Haute. By reason of a letter on the body, notice was given by the undertaker to a friend of the boy in Memphis, Tenn. This friend conveyed the information as to the death by telephone from Memphis to Hot Springs, Ark., where the plaintiff resided. Plaintiff had no telephone, and the conversation was with a lady neighbor, who undertook to convey the information to the plaintiff. In doing so she had forgotten the name of the Terre Haute undertaker. Upon a list of Terre Haute undertakers being presented to her, she thought the name of “Hickman” was the — 65 — one who had the body in, charge. Thereupon plaintiff telephoned him, and he offered to find out who had the body and to take charge of it. Plaintiff told Hickman to do nothing. Thereupon plaintiff went to an undertaker in Hot Springs, and, in looking over the names of the Terre Haute undertakers, it was decided that the name of the one having the body was lv V. St. Clair. Thereupon the plaintiff and the local undertaker, H. McCafferty, went to a substation of the company at Hot Springs, and requested the operator to write out the following message, which McCafferty signed: “Hot Springs, Arkansas, August 30th, .1907. “E. V. St. Clair. Terre Haute, Indiana. Skip body of Leo Ivy to Traskwood, Arkansas. Thirty dollars for expenses. “[Signed] II. HcCafferty, Undertaker.” There was no undertaker in Terre Haute by the name of E. V. St. Clair; the name being Sinclair. Tiffs telegram never reached Terre Haute. Traskwood was some miles distant from Plot Springs, to which point plaintiff desired the body sent by reason of the fact that the bodies of some members of his family had been buried there. Plaintiff and some of his family went to Traskwood, and remained for a day or two, and, the body not coming, they returned to their home, incurring expenses for telephone and telegrams, and traveling expenses, and loss of time, aggregating $40. Before leaving Hot Springs for Traskwood, plaintiff was called up by the long distance telephone from Terre Haute: but he declined to answer the call, stating that it would incur an additional expense, and would serve no purpose. Sinclair retained the body a couple of days, and then buried it in the Potters’ P'ield in the cemetery at Terre Haute. If Sinclair had received the message, he would not have shipped the body for less than $65; the guaranty to be made good by deposit of the money with the local express office in Hot Springs. About a month after-wards, when all the facts were learnedj Sinclair would have taken the body up and shipped it upon a like guaranty of $125, and not for less. Section 7947 of Kirby’s Digest of the Statutes of Arkansas of March 7, 1878, is as follows: “All telegraph companies doing business in this state shall bo liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages ; and in all actions under this section the jury may award such damages as they conclude resulted, from the negligence of the .said telegraph company.” Such damages are not allowed in Indiana. The case was tried to a jury, resulting in a verdict and judgment in favor of the plaintiff of $1,478.62, and the telegraph company now seeks to reverse this judgment by writ of error. On the foregoing statement it will he seen that more than $1,400 of the judgment is on account of mental anguish. _ Much of the time of the trial, much of the evidence, and a considerable part of the charge of the court were devoted to the various propositions as to what would have been the result had the message been received at the office of the telegraph company in Terre Haute. — 66 — The evidence shows that, while there was no undertaker there by the name of St. Clair, the city and telephone directories showed that E. V. Sinclair was an undertaker. The wording of the message showed that it was of and concerning a human body. It was contended by the plaintiff, in which he was sustained by the jury and the Circuit Court, that by the exercise of diligence by the Terre Haute office, the message would have been delivered to Sinclair. It was also successfully contended, both before the jury and the Circuit Court, that although there was only a guaranty of $30, and no statement made as to how that guaranty would be enforced, if thd message had been received by the Terre Haute telegraph office, negotiations by telegraph would have taken place, and the additional guaranty, amounting to $65 in the aggregate, would have been made with the express company agreeably to the terms of Mr. Sinclair. Whether the statute above quoted allowing damages for mental anguish could have any application to an interstate message, and whether such statute as to such interstate message would impinge upon the “commerce clause” of the national Constitution, and whether such statute is anything more than the exercise of the police power of the state of Arkansas, and, if the latter, whether the same could be enforced in an action for damages by reason of the failure to deliver an interstate message, are all questions that we pass to one side. We do not decide as to any of those questions. But we are of the opinion that, if the message had been delivered to the Terre Haute office, there were so many uncertainties and things intervening that it cannot be judicially said that the body would have been transmitted to Traskwood, Ark. Nor can it be said that the telegraph company in receiving the message in Arkansas for transmission could have contemplated, as the result of a failure to thus transmit the message, that such conditions would arise and all be solved in favor of the plaintiff; Would the Terre Haute operator have learned that Sinclair was the party intended, and not St. Clair? Would Sinclair have wired back that $65 must be deposited with an express company at Hot Springs? Would plaintiff have paid for said message, and have made such deposit, and so wired Sinclair? These questions must all be answered in the affirmative, and in addition thereto it must be said, before the alleged cause of action could be maintained, that such things and such answers were in the contemplation of the company when it failed to put the message over the wire to Terre Haute. It could not reasonably have been expected that further correspondence would take place, and that such correspondence, if taking place, would result in the end to the satisfaction of Sinclair. Damages can only be allowed for that which is the result of the breach of the contract, or of the wrong done. And that which is the result of such breach or wrong cannot be determined by speculation, or argument, or the dependency of one conting-ency on another. Globe Co. v. Landa Co., 190 U. S. 540, 544, 23 Sup. Ct. 754, 47 L. Ed. 1171; Boston R. R. Co. v. O’Reilly, 158 U. S. 334, 15 Sup. Ct. 830, 39 L. — 67 — Ed. 1006; Primrose v. Western Union, 151 U. S. 1, 29, 14 Sup. Ct 1098, 38 L. Ed. 883; Richmond R. R. Co. v. Elliott, 149 U. S. 206, 13 Sup. Ct. 837, 37 L. Ed. 728. In the case at bar, plaintiff in person, or through McCafferty as agent, could not direct or command Sinclair. It was a matter oí contract to be preceded by negotiations with no certainty that negotiations would ripen into a contract. It was all conjecture. Plaintiff had been advised that some one at Terre Haute had the body of his sou. He telephoned the undertaker Hickman, and then told Ilickmau to do nothing. Then later the same day, after sending the telegram, he had a call by phone from Terre Haute, which he refused to answer because it would cost him $1. He well knew, as any reasonable man would know, that it was concerning his son’s body. Had be answered that call, with that trifling expense, he would have learned all the facts, and have made the contract for shipping the body, or would have failed in his negotiations. A. party cannot allow matters to thus proceed, when by a slight effort or small expense all difficulties would be avoided. Warren v. Stoddart, 105 U. S. 224, 229, 26 L. Ed. 1117; Baird v. U. S., 131 U. S. cix, 21 L. Ed. 519. So that it clearly appears that the plaintiff was deprived of seeing the body of his son, and having it interred in his own burying ground, by reason of one contingency after another, all of which must have been solved in favor of the plaintiff before the body would have gone forward. We conclude that this would be allowing a recovery by reason of one contingency after another, and one doubt after another, all of which must have been coupled together and worked out to the satisfaction of the plaintiff. He says he was a poor man and with great difficulty could raise the small amount of money for the payment of the first message to Hickman and the other small incidental expenses, it does not appear that he could have raised $65, which would have been required. And, even if such fact did appear, the fact still remains that it. was one contingency after another which might never have taken place, and the failure of any one would have left the body for burial at Terre Haute. But if he could have raised the money, then by the comparatively small expense of $125 the body would have been taken up and shipped forward after one month’s delay. We are of the opinion that the request of defendant for a directed verdict in its favor should have been granted. As above stated, the message was never received at Terre Haute. There is a connection by wire over defendant’s lines from Hot Springs to St. Tonis. The message was delivered to the company at Hot Springs, at 12 o’clock noon, and within a few minutes it was in the St. Touts office, at' which place it had to be relayed lor Terre Haute. At that relay office within a very few minutes the message was put on the wire for Terre Haute. The wire on which the message was put was the usual wire for Terre Haute business, and the wire was in working order. Immediately after the message was thus put on the Terre Haute line by the St. Tonis operator, a signal or check was — 68 — received by the St. Louis operator acknowledging receipt of the message as though it -had been received in Terre Haute. To account for this a showing is .made that at that time there existed a violent and vicious strike of defendant’s operators all over the country. Its force of employés in the St. Louis office by reason of this strike had been reduced to about one-third in number. At the Terre Haute office the reduction in the working force was but slight. But the evidence is that all over the country telegraph keys were opened, the wires grounded, and messages interfered with by strikers and unauthorized persons. And all this was without fault of the company. No one can say just what became of this message, nor at what point between St. Louis and Terre Haute it left defendant’s wire. But the uncontroverted evidence conclusively shows that at some point between the two cities the message left defendant’s wire through no fault of it or its employés. When the St. Louis operator put the message on the wire, he had fully and completely performed his duty except in the one thing, namely, to receive back the signal or information that the message had been received at Terre Haute. This duty the St. Louis operator fully performed, as he believed, when receiving the signal that the message had been received at Terre Haute. And when, he received that signal, his duty was at an end. No operator at Terre Haute was in any degree at fault, because the message never went to that office. In our opinion there can be but the one conclusion, that the message was taken from the wire at some point unknown, between St. Louis and Terre Haute, and was thus taken from the wire by an unauthorized person. And by such a showing the company is exonerated. A telegraph company is not an insurer. When the message is received and the charges paid, it must up to its capacity transmit that with other messages tendered, and the failure to transmit is a prima facie showing of negligence, and warrants a verdict, unless such failure is satisfactorily explained. A complete statement of defendant’s obligation and the rules governing its business in a case like this is stated in Cooley on Torts (3d Ed., vol. 2, p. 1382), where it is said: “In reason as well as on autliority, they are responsible in sending, receiving, and delivering messages, on the grounds only that through their negligence errors or unnecessary delays have occurred, or that they have failed to transmit and deliver messages impartially. If a message is not sent and delivered within a reasonable time under the circumstances, or if errors occur in the transmission, which are attributable to their negligence, they are responsible for all consequent damages; but they are not insurers, and, if errors occur without their fault, they are not responsible.” So that from principle and authority it clearly appears that defendant is not an insurer and only chargeable with negligence, with the burden upon the company to excuse itself from the charge of negligence by a satisfactorj'- showing of its inability to transmit and deliver the message. By such a showing it is not responsible in damages. But the defendant not being an insurer and only chargeable with negligence, with the failure to deliver the message presumptively supplying the proof as to such charge, the company has made a showing which to our mind admits of no difference of opinion. To other — 69 — wise hold would be to declare that such presumption of negligence is a conclusive one, and not subject to rebuttal. It will not do to hold that because the company could not name what key was opened, or where the wire was grounded, or what vicious or unauthorized person interfered with the message, or a failure to show who sent to the St. Louis operator the false information that the message had been received at Terre Haute, is not a sufficient excuse. There should have been a directed verdict for the defendant on each of the foregoing propositions, failing to give which the Circuit Court was in error. The judgment of the Circuit Court is reversed, and the cause is remanded, with directions to grant a new trial.