MacKay Telegraph Cable Co. v. Martin , 218 S.W. 133 ( 1920 )

^* For opinion on motion for rehearing, see 218 S.W. 1071. A peremptory instruction asked by the appellant was refused by the court, and error is predicated upon the ruling of the court. It is believed there was error in refusing the requested instruction, for, according to the evidence, the death message was an interstate message sent from Rosedale, Miss., to Paris, Tex., and as such was interstate commerce. And the laws of Mississippi where the message originated do not allow, according to the admitted facts, a recovery of damages for mental anguish alone as relied on in this case. Communication by telegraph is commerce, and messages passing from one state to another constitute such commerce. Tel. Co. v. Pendleton, 122 U.S. 347, 7 S. Ct. 1126,30 L. Ed. 1187. And as there was to be a continuous transmission of the message in evidence from Rosedale, Miss., to Paris, Tex., the message was subject-matter of interstate commerce when the Mackay Company, as one of the agencies, undertook to further its transmission to the point of destination. Houston Navigation Co. v. Ins. Co., 89 Tex. 1, 32 S.W. 889,30 L.R.A. 713, 59 Am. St. Rep. 17. Since the message is interstate, and the Mackay Company is merely one of the agencies employed in the furthering of the prompt transmission of the message, the liability of the Mackay Company would be determined, it is thought, by the law of the state where the original contract was made. In this state the question is settled that the contract is controlled by the laws of the state where it is made. Tel. Co. v. Douglass, 104 Tex. 66, 133 S.W. 877; Tel. Co. v. Bailey, 184 S.W. 519; Id., 108 Tex. 427, 196 S.W. 516.

The judgment is reversed, and a judgment is here rendered in favor of the appellant.