Duncan v. Western Union Telegraph Co., 47 So. 552

47 So. 552 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

We have carefully examined this case and all the authorities cited by counsel on either side. We find no error either on direct appeal or cross-appeal, and would affirm the case without written opinion, were it not for the fact that the main Object of the direct appeal is to have us overrule the case of Telegraph Company v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300, wherein it is held that no damage can be re covered on account of mental pain and anguish. The Rogers case was decided in 1891, and has stood as the law of this state for seventeen years. Since it was decided we have had many sessions of the legislature without any change being made in the law, and we shall not now disturb the decision.

On the cross-appeal we do not think the court erred in any particular. The authorities cited by the cross-appellant are readily distinguished in their facts from the case now on trial. The case of Hilley v. Western Union Telegraph Company, 85 Miss. 67, 37 South. 556, comes nearer this case on its facts, than any other case cited on cross-appeal; but the Hilley case is easily distinguished. In the Hilley case, supra, the facts showed that Hilley was at Meridian, Miss., and having a sick child at his home in Sugar Valley, Ga., wired to his wife there the following telegram: “Wire me, McComb City, Miss., how sick are.” On receipt of the message, Mrs. ITilley wired to MeComb City, as requested: “Sick are no better.” This message was sent to MeComb City, but was not delivered to ITilley, because he had been ordered to go to Vicksburg, and did not go to MeComb City. When ITilley learned of this change in his plans, he wired the telegraph office in MeComb City the following message: “Forward all telegrams for me to Vicksburg, Miss.” ITilley never received the message sent by his wife, because of the negligence of the company, and being anxious about his family, and having made many inquiries for the telegram at the Vicksburg office after his arrival there, left for his home without again wiring to his home, and the court held that under these circumstances he was not entitled to the expense of his trip home.

But this case now under consideration is very different in its facts. In this case Duncan’s son, a boy of seventeen years, was attending the Virginia Military Institute at Lexington, Va. Duncan had not heard from his son -in a long while, and, being uneasy about him, wired the following telegram to.the superintendent of the institution: “Is Townes sick ? Have not heard from him for some time. Answer promptly, collect.” Replying to the telegram, the superintendent wired back, “Son very veil but the company negligently changed the telegram so that it read: “Son very ill.” On receipt of the message reading this Avay, Duncan and his wife very naturally left on the first train to go to their son. Under these circumstances it is our view that he should be allowed the expenses of this trip. It was not reasonable to suppose that another telegram would relieve him of the necessity of the trip, and the negligence of -the company in making the telegram read “Son very ill,” instead of “Son very well,” as it should have read, directly caused the unnecesary expense. What father or mother, who could have left for their son’s bedside, under these circumstances, would not have done so?

Affirmed, on appeal and cross-appeal.