Western Union Telegraph Co. v. Dozier , 67 Miss. 288 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

The verdict is contrary to the law and evidence, and should have been set aside. There is no warrant in the evidence, in any view of the law, for a recovery of any actual damage, for none is shown, it not appearing that Dr. Dozier sustained any by reason of the non-receipt of a message requesting his services. The truth appears to be that no message was sent to Dr. Dozier, but that, an ineffectual effort having been made to get Dr. Walker at Nicholson, and Dr. Watkins at Hattiesburg, the operator at Poplarville inquired of the operator at Hattiesburg if Dr. Dozier was in the town and was informed in reply that he had removed to Gulf-Port, and this being supposed to be true, no message was sent to Dr. Dozier. It is certain that no message to him was charged for or paid for, and therefore nothing was received by the company on this account. It appears that the operator, Mr. Atkins, was in full sympathy with those trying to procure a physician, and at his own instance, and free of cost to them, wired to Ellisville for the purpose of getting a physician known to him, who lived there, and this suggests the improbability that he should have failed to transmit any message delivered to him to be sent to Dr. Dozier.

The only messages actually written for transmission were to Dr. Walker at Nicholson, and to Dr. Watkins at Hattiesburg, and they were transmitted. If it be true that Stewart and Flanagan or either told the operator to wire Dr. Dozier, the question is, whether that was the delivery of a message, within the meaning of the law, for the non-transmission and delivery of which liability would be incurred by the company. In the absence of satisfactory evidence of a known course of business by the telegraph company to receive verbal messages orally delivered to operators for transmission, we are not willing to sanction the proposition that failure to transmit such a message is a ground for recovery against the company, either by statute or common law. It is common knowledge that messages are required to be written, and upon the blanks of the company, and it would be hazardous to pursue any other course. The very expression as to a message delivered to be sent, carries with it the idea of a written or printed message, and it would seem, that for one to talk to the operator as to the message he desired to send could not, in view of the course of business of telegraph companies, impose any liability on such company.

Reversed and remcmded.