Western Union Telegraph Co. v. Smith ( 1916 )

On Motion for Rehearing.

[4] 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mentioned in the opinion, all laws in force in the territory remain in force as the laws of the state until altered or repealed. The evidence shows the laws with reference to this subject have not since been altered or repealed.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 This being the law when New Mexico became a state it continued in force under the state Constitution until altered or repealed. Under the evidence it is uncontroverted that this law has never since statehood been altered or repealed.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.