THE WESTERN UNION TELEGRAPH COMPANY, a New York Corporation, Appellant,
ANNE V. CONWAY and J. T. CONWAY, Her Husband, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded with directions.
Mr. Francis R. Stark, of New York City and Messrs. Gust, Rosenfeld, Divelbess, Robinette and Coolidge, for Appellant.
Mr. Wallace W. Clark, for Appellees.
[57 Ariz. 209] ROSS, J.
The question we have to decide is whether the Western Union Telegraph Company is liable in damages for failure to deliver an interstate telegram to the plaintiff, Anne V. Conway, announcing the death of her mother, when by reason of such failure she was prevented from attending her mother's funeral. The telegram, in the following words: "MOM DIED THIS MORNING PEACEFULLY BURIAL THURSDAY VERY SORRY YOU CANT BE HERE PERHAPS LATER POP" addressed to Mr. and Mrs. J. T. Conway at Phoenix, Arizona, was delivered to the defendant at Canton, Ohio, January 17, 1939, for transmission. The plaintiff Anne V. (Mrs. J. T.) Conway, on January, 18, 1939, at about 11 P.M., first learned, through her brother's telephoning her from Canton, Ohio, of her mother's death and that her funeral would be on Thursday, January 19, too late for her to go to Canton for the funeral.
The plaintiff's damages are laid in the following language of her complaint:
"That by reason of the defendant's negligent and careless conduct in failing and neglecting to deliver said message, she, the said plaintiff, Anne V. Conway, was prevented from attending the funeral and last burial rights of her beloved mother; that she did, on learning for the first time of the death of her mother and of the time fixed for the funeral and last [57 Ariz. 210] burial rights, become ill and was required to remain in bed for the period of four days, or thereabouts, wherein she suffered much mental pain and anguish, nervous shock and physical ailment...."
The defendant in its answer admitted liability for return of the amount paid for transmitting the message from Canton, Ohio, to Phoenix and for the telephone message, in all $16.45, and offered to confess judgment for that amount; but contended therein that it was not liable "for mental anguish or physical suffering growing out of mental anguish," the only elements of damage alleged or proved by plaintiff.
The case was tried before a jury and resulted in a verdict for $500, the exact amount prayed for, and judgment was duly entered thereon. The company has appealed.
The defendant insists that the only damages plaintiff was entitled to recover were nominal. It accordingly, at the close of plaintiff's case and again at the close of the case, moved for a directed verdict for plaintiff for nominal damages, and it is the order overruling such motion which is assigned as error. The ground of the motion was that under the federal rule there can be no recovery for mental anguish or physical suffering growing out of mental anguish, and that such rule is exclusive when the negligence is in connection with the failure to deliver an interstate telegram, as here.
The parties are in agreement that the federal rule of damages for failure of the common carrier of intelligence to deliver an interstate telegram is the applicable rule, but they differ as to what that rule is. This rule results through the exercise by the Congress of the power conferred on it in the Federal Constitution, Art. 1, Sec. 8, cl. 3, to regulate interstate commerce, Act June 18, 1910, 36 Stat. 539, 49 U.S.C.A., §§ 1-15; U.S.C.A., title 47, secs. 151 et seq. That [57 Ariz. 211] the occupation of such field by the Congress is exclusive has frequently been confirmed by the courts, both federal and state. Western Union Telegraph Co. v. Griffin, 41 Ariz. 387, 18 P.2d 653; Western Union Telegraph Co. v. Speight, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104; Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; Western Union Telegraph Co. v. Boegli, 251 U.S. 315, 40 S.Ct. 167, 64 L.Ed. 281; Poor v. Western Union Telegraph Co., 196 Mo. 557, 196 S.W. 28; Western Union Telegraph Co. v. King, 61 Ga.App. 537, 6 S.E.2d 368; Ingram v. Hughes, 170 S.C. 1, 169 S.E. 425, 87 A.L.R. 1325; O'Brien v. Western Union Telegraph Co., 1 Cir., 113 F.2d 539; Western Union Telegraph Co. v. Aldridge, 9 Cir., 66 F.2d 26, 89 A.L.R. 352; Vaigneur v. Western Union Telegraph Co., D.C., 34 F.Supp. 92; Pullman Co. v. Dudley, (Tex. Civ. App.) 77 S.W.2d 592. In the Griffin case, supra [41 Ariz. 387, 18 P.2d 654], we said:
"By the amendment of June 18, 1910 (36 Stat. 539), U.S.C.A., title 49, §§ 1-15, the Interstate Commerce Act was extended to cover common carriers engaged in the transmission of intelligence by wire or wireless in interstate and foreign commerce. Before this, the regulation of such agencies was generally recognized as a state right or function, and their liability for tort or breach of contractual duty was governed by statute and by the common law, or both. The regulation of interstate commerce is by the Federal Constitution conferred upon the Congress. Article 1, § 8, subd. 3. Until the Congress assumed the exercise of this power by the creation of the Interstate Commerce Commission and invested it with the supervision and regulation of common carriers of intelligence, such as telegraph and telephone and cable companies, there was no objection to the different states occupying such filed. Congress having moved into the field, however, has automatically ousted the states. It is now well [57 Ariz. 212] settled by the federal courts and most of the state courts that the rights and liabilities and duties arising out of interstate messages depend upon the act of Congress.
"We have frequently recognized the binding effect upon this court of the decisions of the Supreme Court of the United States, where federal ...