Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-06-24
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY W. B. MARTIN.
(Excluslvely for virginian-P ilot)

WHEN AN AGENT SENDS a TELI1-
GRAM IN HIS OWN NAME. AN
NOUNOING A DEATH, HIS FAIL
URE TO NOTIFY THE COMPANY
OF THE RELATION OF THE AID
DRESSEE AND HIS PRINCIPAL.
AND THAT IT IS SENT FOR TIE
LATTERS BENEFIT. WILL NOT
PRECLUDE THE PRINCIPAL
FROM RECOVERING FOR HIS
MENTAL SUFFERING CAUSED
By a FAILURE TO DELIVER THE
DISPATCH.
This was an action to recover dam
ages for failure TO promptly deliver Il
telegram. The telegram announced the
death of plaintiffs husband, and re-
queSted her brother in-law to come to
her The telegram was sent by Payne
as agent for plaintiff, in his own name
and he did not notify the company of
the relations between the plaintiff and
the ADDRESSED of the dispatch, or that
1t was sent for her benefit. The plain
tiff claimed damages for the mental
anguish caused her by the delay lin
the delivery Of the message The lower
court held that she could not recover
for such suffering and gave her juds-
ment for 70 cents, the cost OF the tele-
gram. whcreupon she appealed.
The cour; says:
This directly presents the question
whether the plaintiff can recover dam
ages for mental anguish caused by the
negligence of the defendant in failing
to promptly deliver II telegram sent
through an agent, when the name of
the plaintiff was not signed to the telc-
gram. and when the fact that ii was
sent for her was not disclosed to the
defendant at the time the message WAS
sent. nor were her relations with the
addressec then communicated to the
company. We intended to decide this
question ut the first hearing, and
thought we had done So ut least by
direct Inference. but, it seems. no; ex-
plicitly enough to be understood. TO
prevent any further Observation-Disclosures we
say, plainly she can recover, if other
wise entitled. In other words, tho fail
ure to give such information was no bar
to the action, or to the recovery OF
substantial damages. In Lyme V. Tee-
graph Co. 123 N G. 123. it was held
that, where a telegram relates TO sick
ness or death, 1t is not necessary to dis
close 10 the company the relation of
the parties, as there is a common sense
suggestion that it is important. The
same rule applies here. The telegram
In question stated that Mr.. Cashion had
been killed while AZ work, and on it's
face suggested that it was of unusual
Importance to somebody. The defcn-
want NHcW t1'tt somewhere there was 4
vacant chair: that some one the lonely
dcathwatch was keeping. Who or
where ii mattcrcd not TO the defendant
as II had no more right to wrong one
person than another.
The able counsel for the defendant
rches upon 1iadiey V. BaXenGalc, 81
EXch. 341.
This rule Is almost universally fol-
lowed as to all ordinary business trans
actions, but can it have any possible
application to the case at bar? We
think not. What probable damages
could Mrs. Cashion possibly have had
In contemplation, when. in the first
hour of her bereavement. she sent 4
telegram announcing the sudden and
violent death of her husband? Surely
hhc could not be expected to dictate
such 81 telegram with the cool delibera-
ton with which a man would contract
Tor the shipment of a mill shaft: nor
can her mental anguish be measured
by the rule laid down in Determining
the lost profits OF Hadley's mill. we
must submit that damages for men
TAI anguish are somewhat anomalous.
and the extreme difficulty of their adj
measurement by any ordinary rule OF
Jaw mas lea many jurisdictions TO re-
Ject the doctrine. We have found II
established In this State. and feel com
PEELED to uphold it, on the highest prin-
ciples of public policy and of private
right. and must give 1t such reason
able construction as will enforce its
legitimate results.
one other principle must be kept in
view: a telegraph company is in the
nature of a common carrier. Claim
Ing and exercising the right of CON
domination, which can he done only for
n public purpose, it is thereby affected
with public use. 1t owes certain du
ties TO the public, which are not depend
ent upon personal contract but which
are imposed by opera ton of law. \
simple contract Is an agreement be-
tween two parties.-a drawing together
or two minds TO a common intent
and must be voluntary as well as mn
tual. whenever q man, at 4 nroper
time and place presents a telegram to
the company for transmittal. and at the
same time tenders the proper fee, the
company is bound to receive. trans
nit and deliver it with reasonable care
and diligence: 1t cannot refuse to re-
ceive 1t; and. while it may protect it
sell by reasonable rcgulat tons il cannot
insist upon prsonal contract contrary
to It's usual custom or to public policy.
The failure of the telegraph company
to promptly deliver a telegram lis not
n mere breach OF contract, but a fail
ure to perform duty which rests upon
II as the servant of the people" While
reaff1rming the doctrine we must again
earnestly caution juries against lis
abuse. The defendant is in no way re-
sponslble for the anguish suffered by
the plaintiff for the loss Of her hus-
band. All that can possibly be charged
to 1t Is the injury resulting from
negligent failure to deliver the tele-
gram; and the jury, in considering this
matter, shorld carefully guard against
the sympathy they would naturally