
    WESTERN UNION TELEGRAPH CO. v. SMITH et al.
    (No. 1009.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1916.
    On Motion for Rehearing, Oct 18, 1916.)
    1. Telegraphs and Telephones <§=>27 — Negligent Delay in Delivery — Recovery eor Mental Suffering — Law Governing.
    In suit for negligent delay in delivering a telegram, the law of the state where the message was sent and the contract for transmission made governed the question of whether damages for mental suffering without physical injury were recoverable.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 80; Dec. Dig. <§= 27.]
    2. Damages <§=2 — Action oe Tort — Law Controlling.
    In an action for tort, the law of the place where the wrong or tort was committed controls on the question of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 2; Dec. Dig. <§=2.]
    3. Commerce <§=8 — Interstate Commerce Act — Application to Interstate Messages.
    If, by Act Cong. June 18, 1910, c. 309, 36 Stat. 539, amending Interstate Commerce Act, Feb. 4, 1887, c. 104, 24 Stat. 379, subjecting telegraph companies to the provisions of the act, Congress has taken full charge of the subject, the sender of an interstate telegram which is negligently delayed in delivery cannot recover for mental suffering from the company, a right gvien by statute in Texas.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <§=8.]
    On Motion for Rehearing.
    4.Telegraphs and Telephones <§=68(2)— Negligent Delay — Damages—Law oe New Mexico.
    Under Const. N. M. art. 22, § 4, providing that all laws in force before admission of the territory remain in full force and effect as the laws of the state until altered or appealed, in an action against a telegraph company for negligently delaying delivery of a message, recovery for mental anguish, apart from physical injury, cannot be had, such having been the common law in force in the state as a territory, and there having been no alteration in the law.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 69; Dec. Dig. <§= 68(2).]
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Action by Ada Smith and E. D. Smith against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Motion for rehearing.
    Former judgment set aside, and opinion withdrawn, and judgment for plaintiffs reversed and rendered for defendant.
    Jno. W. Yeale and W. A. Davidson, both of Amarillo, and Albert T. Benedict, of New York City, for appellant. W. F. Hendrix, of Tulia, for appellees.
   HUFF, C. J.

The appellee Mrs. Ada' Smith, joined by her husband, E. D. Smith, instituted suit against the appellant for failure to deliver a telegram sent from Artesia, N. M., to Judge C. F. Kerr, at Dimmitt, as follows:

“Ada coming. Have conveyance meet her at Hereford. ‘Phone Hereford [Signed] E. D. Smith.”

Mrs. Smith’s brother was killed .at Dimmitt and the allegations show that on the evening previous to the sending of the telegram that Kerr had talked with E. D. Smith over the phone, requesting Mrs. Smith to be at the funeral the next day, at 5 o’clock. Mrs. Smith at that time was not very well, but Smith notified Kerr that she was able to go, and that he would wire him the next-morning, which he did, notifying the agent receiving the telegram of the necessity in prompt delivery of the message; that the message was not delivered, and no one was at Hereford to meet Mrs. Smith, as requested, and as a consequence she was unable to be at the funeral, being unable to get a con-‘ veyance out of Hereford for Dimmitt in time to be present; that if the message had been promptly delivered, as appellant undertook to do, that she could and would have been present at the funeral.

Among other defenses interposed by appellant was a plea, alleging that under the laws of the state of New Mexico, where the contract was made, damages were not recoverable on account of mental anguish in cases of this kind, where there was no physical injury.

We believe tbe evidence offered being un-controverted in its nature as to tbe law of New Mexico, as to tbe truth of tbe plea by appellant, by a disinterested lawyer of New Mexico, of some 28 years’ experience, and tbe Quotation by bim of section 4, art. 22, of tbe Constitution of that state, to tbe effect that all laws in force in tbe territory of New Mexico before admission into tbe Union, remained in full force and effect as tbe laws of tbe state, and “from tbe decisions of Leitsendorfer v. Webb, 1 N. M. 34—53, also Sandoval v. Albrigbt, 14 N. M. 345, 93 Pac. 717, bolding to tbe effect that tbe common law was extended over tbe territory so far as relates to tbe regulation and control of proceedings of tbe Supreme and District Courts in determination of causes, and tbe law was declared by tbe final tribunal of tbe territory previous to tbe Constitution and admission of tbe territory into tbe Union, by tbe Circuit Court of Appeals of tbe Eighth District for the United States, in tbe case of Western Union Telegraph Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386, to tbe effect that damages were not recoverable for mental anguish unaccompanied by personal injury.

Tbe appellant requested a special charge, instructing a verdict for it, which was refused and assigned as error; and also a charge to tbe effect that if tbe jury should find from tbe evidence that there was no law in New Mexico, authorizing recovery for mental suffering as damages, to return a verdict for tbe appellant. These charges were refused by tbe trial court, and exception reserved thereto and assigned here as error.

We regard tbe testimony as uneontroverted and as establishing that tbe law in New Mexico at the time of tbe sending of tbe message was as alleged; and that being tbe place of the contract, under tbe authorities of this state, tbe court should have instructed tbe jury as requested. Telegraph Co. v. Waller, 96 Tex. 589, 74 S. W. 751, 97 Am. St. Rep. 936; Telegraph Co. v. Buchanan, 35 Tex. Civ. App. 437, 80 S. W. 561; Telegraph Co. v. Cooper, 29 Tex. Civ. App. 591, 69 S. W. 427; Ligon v. Telegraph Co., 46 Tex. Civ. App. 408, 102 S. W. 429; Telegraph Co. v. Garrett, 46 Tex. Civ. App. 430, 102 S. W. 456.

In tbe original opinion, it was our view that the action was for negligence in failing to deliver tbe telegram in Texas and that tbe cause of action was really ex delicto; and we understood that our Supreme Court, in Stuart v. Telegraph Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623, so decided. Being a tort, committed in tbe state of Texas, where such damages could be recovered, tbe law of tbe place of the wrong or tort should control; but tbe authorities above cited- appear to bold to tbe contrary, and the rule in this state, as we gather from tbe decisions, is that tbe place of tbe contract will control tbe maximum amount of damages which may be recovered. We, perhaps, bad in mind tbe rule of tbe United States Supreme Court, that in order to maintain an action of tort, founded upon an injury to tbe person, or to property and not upon a breach of contract, tbe act which is tbe cause of the injury, and tbe foundation of tbe action, will be governed by tbe law of tbe place in which it was done. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. However, whatever tbe rule may be in other jurisdictions, it appears to be established in this state, as above pointed out.

Tbe case also presents tbe issue whether interstate messages, under tbe amendment of the Interstate Commerce Act, June 18, 1910, by which telegraph companies are subject to tbe provisions of that act, tbe Congress has taken full charge of tbe subject? This message, under tbe act, was interstate. Tbe question, therefore, is, whether Congress has clearly manifested a purpose to supersede or suspend tbe exercise of tbe police powers of tbe states with reference to this particular subject. Tbe Courts of Civil Appeals for tbe Sixth and Eighth Districts apparently have answered this question in tbe negative. Bailey v. Telegraph Co., 171 S. W. 839; Telegraph Co. v. Schoonmaker, 181 S. W. 263. In tbe latter case, however, mental anguish does not appear to have been considered. In tbe former case, Mr. Justice Hodges discusses tbe effect of tbe act and reached tbe conclusion, as we understand tbe opinion, that tbe act will not deprive tbe state rule of its former force, even on interstate messages. He reviews at some length tbe case of W. U. Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. As we gather from tbe opinion, Judge Hodges reached the conclusion that it was not tbe purpose of that case to bold that Congress intended to supersede tbe law of tbe states on failure to deliver interstate messages.

Tbe Supreme Court of Arkansas, in tbe case of W. U. Telegraph Co. v. Johnson, 115 Ark. 564, 171 S. W. 859, held that action for mental anguish, under tbe law of that state, will not lie for tbe failure to deliver an interstate message. W. U. Telegraph Co. v. Compton, 114 Ark. 193, 169 S. W. 946; W. U. Telegraph Co. v. Stewart (Ark.) 179 S. W. 813. That court interprets tbe Brown Case as bolding that tbe Interstate Commerce Act will control.

In Virginia (W. U. Telegraph Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91) it was held in so far as interstate business was concerned, tbe act in question placed telegraph companies under tbe direct supervision of tbe Interstate Commerce ’Commission, rendering inapplicable tbe state statutes imposing a penalty for failure to promptly transmit messages. There are some distinctions in tbe cases cited, which may be made from tbe case rendered by Judge Hodge. We must confess that Judge Hodge’s position is strongly argued and fortified by reason and authority, but it appears to us the statement in the Brown Case, supra, while not necessary to that decision, is strongly persuasive that the Supreme Court of the United States bolds to the view that Congress has taken charge of the matter relating to interstate messages and with reference to receiving and sending such messages, and the rule in that court will hence determine the liability of the parties under the well-recognized rulings of that court, under the common law, as interpreted by it; and if that is the holding of the Supreme Court, as held in Arkansas, a recovery could not be had in this case for mental anguish.

The judgment heretofore entered, affirming that of the court below, will be set aside, and the opinion rendered thereon withdrawn. Judgment is here ordered that the appellant’s motion for rehearing be granted, and the judgment of the trial court be reversed and here rendered that the appellees take nothing by their suit. The jury, under the issues submitted, found $300 for mental anguish, and nothing for the amount paid for the transmission of the message, or for other special damages alleged, and the judgment of the* court being for the sum of $300, it is the judgment of this court that appellees take nothing by reason of their suit, and that appellant recover its costs in the court below, as well as the costs in this court.

Reversed and rendered.

On Motion for Rehearing.

Appellees insist, in their motion for rehearing, that there is no evidence that the law in New Mexico, as a state, does not allow recovery for damages on account of mental anguish. While it was a territory it was held in the district, of which it was then a part, that under the common law a recovery for mental anguish alone could not be had. The witness for appellant testified there had never been a statute or decision of New Mexico authorizing a recovery for mental anguish. The common law was' in force in New Mexico as a territory and is shown to be still in force therein as a state. By virtue of the Constitution, under the section mentioned in the opinion, all laws in force in the territory remain in force as the laws of the state until altered or repealed. The evidence shows the laws with reference to this subject have not since been altered or repealed. This court practically held in Telegraph Co. v. White, 162 S. W. 905, that under the holding in the Burris Case mental anguish would not be an element of actual damage, and under the common law as construed by the federal courts no recovery could be had therefor in New Mexico. This being the law when New Mexico became a state it continued in force under the state Constitution until altered or repealed. Under the evidence it is uncontroverted that this law has never since statehood been altered or repealed.

On the other questions raised, that is, whether the ease will fall under the federal act regulating interstate messages, we wish at this time to correct the statement in the original opinion that the Eighth district, in the Sehoonmaker Case, 181 S. W. 263, held that -messages from one state to another would not be controlled by the federal act. The court in that case appear to concede that in such messages that court would be controlled by the federal law. We prefer at this time to base our opinion upon the grounds first stated in the opinion filed and without any definite holding on the question as to interstate messages. The Sixth district has again passed upon the Bailey Case and adheres to its former view, holding, as we understand, that Congress has not, by the. act, assumed exclusive control of interstate messages, and therefore mental anguish may be recovered for breach of such message under proper conditions. Telegraph Co. v. Bailey, 184 S. W. 519, in which case it appears that an application for writ of error is yet pending in our Supreme Court.

We find an interesting discussion of the question in the case of Telegraph Co. v. Bank of Spencer, 156 Pac. 1175, by the Oklahoma Supreme Court. With these references, we prefer to leave the federal question for future determination.

For reasons first stated, we overrule the ap-pellees’ motion for rehearing. 
      <§=For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     