191 P. 573 | Nev. | 1920
By the Court,
This is an action instituted by the respondent in the district court of Esmeralda County to recover damages in the sum of $2,900 for mental anguish, alleged to have been suffered because of the failure of the appellant to promptly deliver a death message sent from Cold Spring, N. Y., to the respondent at Goldfield, Nevada. Paragraph 3 of the complaint is in the following words and figures:
“That on, to wit, the 17th day of December, 1913, plaintiff’s father, one Charles Stonebridge, resided near said town of Cold Spring in the State of New York, and was on said day fatally ill, and on said day died near said Cold Spring, and on the 18th day of December, 1913, the plaintiff, by her agent, her brother, one Augustus*152 Stonebridge, made and entered into a contract with defendant at said Cold Spring, by which, in consideration of the sum of, to wit, $1, to it then and there prepaid by plaintiff by her said agent and received and accepted by defendant, defendant promised and agreed to transmit from said Cold Spring- to plaintiff at said Goldfield, and deliver to plaintiff at her said dwelling-house in. Goldfield, with reasonable diligence a certain telegraphic message in the words and figures following, to wit, ‘Cold Spring, Putnam County, N. Y. Dec. 18, 1913. Mrs. Marie A. Nichols, Goldfield, Nev.: Father died yesterday. Gus.’ ”
, Among other things the complaint alleges the negligent and malicious failure of the appellant company to promptly deliver the message mentioned; that respondent suffered great mental anguish because thereof, and that she was damaged because of such negligent and malicious conduct. An answer to the complaint was filed, which consisted of matter negativing the allegation of negligence and malice contained in the complaint. The case was tried before a jury, and verdict rendered for the plaintiff. A motion for a new trial having been denied, the defendant has appealed to this court.
The evidence on the part of the plaintiff showed the message to be interstate in character. Appellant contends that it is the rule of law in the federal courts that no recovery can be had for damages sustained for mental anguish suffered, when unaccompanied by physical injury (Southern Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917a, 197), and that since the amendment of June 18, 1910, to the interstate commerce act (chapter 309, 36 Stats. 539-545), which operated to extend the federal authority over telegraph companies as to their interstate business and contracts, Congress has occupied the field, and thus excluded all state legislation and state rules of construction as to the right to recover for mental anguish caused by the negligence of telegraph companies in
It is conceded by counsel for respondent that this contention would be sound had the defense urged been pleaded in the answer, it being insisted that it is the law of this state that recovery can be had for mental anguish caused through the negligence of another, and defendant, not having pleaded the act of Congress above mentioned, waived its right to rely upon that point.
While counsel for respondent have presented their views in a very masterful manner, we are unable to accept the idea urged upon us. We take it that the law of a case must control, no matter in what way it is brought to our attention.
In view of the allegations of the complaint and the evidence in the record showing the interstate character of the message, a failure to apply the federal statute would constitute such error as would necessitate a reversal by the Supreme Court of the United States. That court, in Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, 35 Sup. Ct. 306, 59 L. Ed. 671, in dealing with a similar question, said:
“But a controlling federal question was necessarily*154 involved. For, when the plaintiff brought suit on the state statute the defendant was entitled to disprove liability under the Ohio act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And if without amendment the case proceeded with the proof showing that the right of the plaintiff and the liability of the defendant had to be measured by the federal statute, it was error not to apply and enforce the provisions of that law.” (Italics ours.)
Nor is the case of Atlantic C. L. R. Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. 188, 61 L. Ed. 476, in point. The complaint in that case alleged-that the line of railway upon which plaintiff was injured was owned and operated “wholly within the State of South Carolina.” The railroad company filed an answer, admitting the allegation of the complaint. It appears from the opinion in that case that upon the second trial, up to the time the plaintiff rested her case, no claim had been made by defendant, and no facts had been pleaded or evidence offered from which it could be inferred that the deceased at the time of his death was engaged in interstate commerce, or that the federal employers’ liability act (U. S. Comp. St. secs. 8657-8665) was in any way applicable to the case. Upon this (second) trial the defendant for the first time, in presenting its case, sought to show that the train which killed the deceased “was engaged in interstate commerce, and that the deceased' was in this respect and otherwise engaged in interstate commerce.” The trial court refused to admit the evidence, upon the ground that it came too late and did not tend to sustain any issue raised. The Supreme Court of South Carolina (100 S. C. 375, 85 S. E. 372) sustained a judgment in favor of the plaintiff, and on error to the Supreme Court of the United States the writ of error was dismissed. In that case the court said:
“While it is true that the reports show that in St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, and in*156 Toledo, St. L. & W. R. Co. v. Slavin, supra, the federal act was not specially referred to in the pleadings, yet they were in such form that the trial court, either without objection or over objection which the supreme court of the state refused to sustain, admitted testimony making it necessary to apply the federal act in deciding each case.”
In the instant case the complaint showing the interstate character of the message, and the evidence oh the part of the plaintiff being in accord therewith, the Mims case is authority for the applying of the act of Congress to the facts as pleaded and proven.
For the reasons given, it follows that the judgment must be reversed; and, since no judgment can be entered in favor of the plaintiff under the pleadings and evidence, judgment should be entered by the trial court in favor of the defendant.
It is so ordered.