Western Union Telegraph Co. v. King

The court erred in overruling the motion for new trial.

DECIDED NOVEMBER 24, 1939. ADHERED TO ON REHEARING DECEMBER 20, 1939. H. S. King sued Western Union Telegraph Company for nominal damages for the failure to deliver a telegram deposited with it at Rome, Georgia, addressed to his daughter in Milwaukee, Wisconsin, the substance of which was as follows: "Your mother died today. Funeral day after tomorrow. Wire whether or not you can come." The message was charged to the plaintiff's account and was not dispatched from the Rome, Georgia, office. The plaintiff alleged that by reason of the failure to dispatch the telegram he was deprived of the companionship, consolation, and sympathy of his daughter during the dark hours immediately after his wife's death and preceding and during the funeral and burial. The jury awarded $250 nominal damages. A motion for new trial was overruled, and the defendant excepted.

1. The transaction was one involving interstate commerce even though the telegram was not transmitted across State lines. Western Union Telegraph Co. v. Czizek, 264 U.S. 281 (44 Sup. Ct. 328, 68 L. ed. 682); Postal Telegraph-Cable Co. v. Eubanks,121 Miss. 530 (83 So. 678); Ward v. Western Union Telegraph Co.,226 Mo. App. 752 (46 S.W.2d, 268).

2. Congress has so far occupied the entire field of interstate business of telegraph companies as to exclude State action on the subjects not expressly excepted. 48 Stat. L. 1064; Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27 (40 Sup. Ct. 69, 64 L. ed. 118); Western Union Telegraph Co. v. Boegli, 251 U.S. 315 (40 Sup. Ct. 167, 64 L. ed. 281); Western Union Telegraph Co. v. Esteve Brothers Co., 256 U.S. 566 (41 Sup. Ct. 584, 65 L. ed. 1094); Western Union Telegraph Co. v. Priester, 276 U.S. 252 (48 Sup. Ct. 234, 72 L. ed. 555); Western Union Telegraph Co. v. Brown, 234 U.S. 542 (34 Sup. Ct. 955,58 L. ed. 1457); Western Union Telegraph Co. v. Speight, 254 U.S. 17 (41 Sup. Ct. 11, 65 L. ed. 104); Southern Express Co. v. Byers, 240 U.S. 612 (36 Sup. Ct. 410, 60 L. ed. 825, L.R.A. 1917A, 197). The purpose of the occupation of this filed of commerce was to insure uniformity of regulation, and, under the above authorities and numerous others which could be cited, to authorize the application of a State rule of nominal damages inconsistent with the rule applied by the Federal courts would have the effect of retaining within the power of the State the right to provide a penalty or damages for the failure to perform a duty the power to punish which it was the intention of Congress to assume exclusively. If the Georgia rule as to nominal damages permits the recovery of more than a nominal amount as nominal damages, such as one penny, six cents, or a dollar, it is contrary to what seems to be the rule as applied by the Federal courts, and it was error for the court to apply other than the Federal rule in this case. The award of damages by way of a different rule as to nominal damages would be just as objectionable and create or tend to create as much lack of uniformity in the regulation of interstate commerce as a statute which had a like effect. Such a statute is ineffective as shown in the Speight case, supra, and others. While the Supreme Court of the United States has made no authoritative ruling on the question of what it adjudges nominal damages to be we are following as persuasive authority the rulings of the Federal courts which have applied the rule. See Atlantic Oil Producing Co. v. Masterson, 30 Fed. 2d, 481; U.S. v. Young, 44 Fed. 168 (3); Hemingway Mfg. Co. v. Council Bluffs Canning Co., 62 Fed. 897, 900; U.S. v. Patrick, 73 Fed. 800.

The court erred in overruling the motion for new trial. The judgment of reversal is adhered to on rehearing and the foregoing opinion is substituted for the original opinion.

Judgment reversed. Stephens, P. J., concurs. Sutton, J.,concurs specially.