108 Tenn. 39 | Tenn. | 1901
Kate N. Gray, a married woman, brings this suit by O. TL Gray, her husband, as next friend, against the defendant company, to recover damages for failing promptly to transmit and deliver a telegram sent by her from Taylors, Mississippi, to her husband, C. H. Gray, at Dayton, Tennessee, informing him of the serious illness of their daughter, and requesting him to come to Taylors.
The trial below resulted in a verdict and judgment in favor of the plaintiff for nominal damages. Plaintiff appealed, and has assigned errors. The facts are practically undisputed. It appears that in July, 1900, O. H. Gray was at Dayton, Tennessee, where for some months be bad been engaged in business, and at that time bis wife, Kate N. Gray, with her daughter, Louise, were in the State of Mississippi, where the family resided. It further appears that O. H. Gray still retained bis residence in Mississippi. On July 15, 1900, Mrs. Gray addressed to her husband the following telegram, to wit: “Louise is sick. Come on first train. Stop at Taylors.” This message was promptly transmitted to Dayton, but was held at the latter place from the afternoon
On the morning of July 16, after receipt of his wife’s message, C. H. Gray telegraphed as follows: “Unless Louise is dangerous, cannot come until first of month.” Shortly after this message was sent, plaintiff received another telegram, sent at the request of his wife, stating: “Louise died at 10 p. m. yesterday. .Come on first train to Taylors.” C. H. Gray, the husband, then left Dayton on the afternoon of July 16, and reached Taylors on the- morning of July 17, but the daughter had been buried at 5 p. m. on July 16. It appears that if the telegram from Mrs. Gray, which was received at the office of the company in Dayton at 5:50 p. M. on July 15, had been promptly delivered, the husband, C. H. Gray, could have taken a train which would leave a half hour later, and have reached Taylors prior to his daughter’s interment. lie testifies that he would have taken said train. It further appears that the husband, C. H. Gray, after the receipt of the last telegram announcing his daugh
As already observed, this is the suit of the wife, and the gravamen of the action is the loss to her of the presence and consolation of her husband at the daughter’s funeral.
Among other pleas filed by the defendant company was the following, to wit: “That the telegram, about the delivery of which complaint is made, was filed at one of its (the company’s) offices in the State of Mississippi, and the contract for the transmission and delivery of said telegram was made and entered into by the parties to the contract in the State of Mississippi, and in reference to the laws of said State, and defendant avers that, according to the laws of Mississippi, under which the contract was made, the plaintiff has no right of action to recover the .damages sued for.” Plaintiff’s counsel demurred to this plea, because immaterial and insufficient in law, but the demurrer was overruled. Plaintiff then filed the following replication to said plea, to wit: “She admits the delivery of the telegram to defendant at one of its offices in the State of Mississippi, and that the contract for the transmission and delivery of said telegram was made in the State of Mississippi, and, according to its laws, she would have no right of action to recover the damages sued for, but she denies that the contract for the transmission and delivery
The Court charged the jury, among other things, as follows: “If the proof shows the message not delivered in a reasonable time, and that plaintiff’s husband on that account failed to go to the plaintiff, and that he would have gone if the message had been promptly delivered, and that plaintiff was, in consequence thereof, deprived of his sympathy and consolation during the daughter’s illness, or at the funeral, you should find for the plaintiff, and award her nominal damages — ’that is, a small sum of a few cents, so as to carry the costs against the defendant. But the contract,
Counsel for plaintiff then submitted four supplemental instructions, which he asked to be given in charge to the jury, which requests were declined by the Court. The substance of said request was that if defendant company breached its statutorv duty as defined by the laws of Tennessee, after the message was received at Dayton, Tennessee, by failing to promptly deliver it, that plaintiff could recover such damages as were the direct and proximate result . of the company’s breach of duty.
The errors assigned are: (1) The Court was in error in refusing to strike out the fourth plea filed by defendant. (2) It was error to charge the jury that plaintiff was only entitled to nominal damages. (3) Because the laws of Mississippi did not govern and control defendant’s liability in this case under the facts. (4) Because
The argument in support of the instructions given by the Circuit Judge to the jury proceeds upon the assumption that the plaintiff’s right of action is ex contractu, and based upon an agreement entered into and partly performed in the State of Mississippi. The corollary is then propounded that such a contract must be governed by the laws of Mississippi in existence at that time, and since the laws of that State exonerate the telegraph company from liability for mental anguish, occasioned by the failure to promptly transmit and deliver electrical messages, .there can be no recovery in this case. It is conceded in argument that such is the law of Mississippi, although the rule is otherwise in the State. of Tennessee. Wadsworth v. Western Union Telegraph Co., 2 Pickle, 695.
. Counsel cites numerous authorities to show that
In the case of Liverpool & Great Western Steamship Co. v. Phoenix Ins. Co., 129 U. S., 397, Mr. Justice Gray, after a thorough review of the principal cases, English and American, on this subject, said that, according to the great preponderance, if not the uniform concurrence, of authority, the general rule is that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view. Accordingly, it was held in that case that a contract of affreightment executed in New York, between citizens or residents of that State, for the shipment. of goods to Liverpool, is an American, and not an English contract, and so far as concerns
In Hazel v. C., M. & St. P. Ry. Co., 82 Iowa, 477, it appeared that goods were shipped from Dakota to Iowa under a contract limiting liability, which contract was void under the laws of Iowa, but valid where made. The goods were lost in Iowa, but recovery was denied because of the limitation of liability contained in the contract of shipment. The Supreme Court said, viz.: It is a fundamental rule, and one of almost universal application, that in case of a conflict of laws concerning a private contract, the law of the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract, unless it be shown by the contract, or fairly inferable therefrom, that the parties intended that the law of another State or country should control their rights. In this case, said the Court, the parties contracted under the laws of Dakota, and the fact that such a contract is void in this State (Iowa) shows that it was intended that our laws should , not have any application to their contract.
In Reed v. Western Union Tel. Co., 135 Mo., 674; S. C., L. R. A., 492, it appeared that a suit was brought in Missouri by the addressee of a telegram sent from Iowa. The Court said, viz.:
In Hubble v. Morristown Land Co., 11 Pickle, 589, we held that “the validity of the contract, the obligation of the parties, its character and extent, are to he settled by the law of the place where the contract was made, or to be performed. If the contract is made in one place, and it is agreed to be performed in another place, the law of the place of performance, instead of the lex loci contractus, will govern the contract.” In that case it was held that a note secured by mortgage on Tennessee land for a loan negotiated in Connecticut, executed in North Carolina, but delivered and made payable in New Jersey, was, in the absence of any different understanding between the parties, governed by the laws of New Jersey in respect to usury.
In Coghlan v. The South Carolina Railroad, 142 U. S., 101, it was held that contracts made in one place,, to he executed in another, are, as a general rule, to be governed by the law of the place of performance. It was accordingly held that bonds of a railroad company in South Caro
These authorities are very instructive upon the proposition submitted by counsel, and probably controlling in this case, if the remedy of plaintiff was alone upon the contract. But we have in this State a statute which has been construed by this Court to provide an additional remedy. It declares that “all other messages, including those received from' other telegraph companies, shall be transmitted in the order of their delivery, correeily and without unreasonable delay, and shall be kept strictly confidential.” Shannon’s Code, § 1831.
“Any- officer or agent of a telegraph company who willfully violates either of the provisions of the preceding section is guilty of a misdemeanor, and the telegraph or telephone company is liable in damages to the party injured.” Shannon’s Code, § 1838.
Construing this statute in Telegraph Company v. Mellon, 12 Pickle, 72, we held that under our statute, allowing a right of action to the party aggrieved, it was not necessary that any contractual relation should exist, but the company is liable for a breach of its statutory duty independent of any contract. The breach of the statute, in failing to deliver the message, entitled the party aggrieved to at least nominal damages,
It will be observed that the Tennessee statute provides no penalty for its infraction, but the violation thereof is declared a misdemeanor, and a right of action is expressly given the aggrieved party for all damages sustained. Plaintiff, as the party aggrieved, is entitled to sue in this State for breach of the statute.
It is insisted, however, that whatever action plaintiff might have brought by virtue of the code provision, she has not started such suit, but is suing upon the contract made with the company in Mississippi. In Western Union Telegraph Company v. Mellon, 12 Pickle, we held that such an injury might be redressed upon a statement of the facts of the case. If the statute prescribed a specific penalty for its violation, and the suit was brought to recover that penalty, it would be necessary to declare on the statute.
The declaration herein, in setting out the facts, recites the contract, but the statement of the cause of action is not- distinctively • ex contractu, and is sufficient for relief under the statute.
We do not pass upon these questions upon this record, but for the errors in the charge of the Court on the subject of the contract, and his refusal to charge, as requested, the judgment Is reversed and the cause remanded.