WESTERN UNION TELEGRAPH CO. v. SMITH

McCLELLAN, J.

This is an action for damages instituted by appellee against appellant, for the failure to transmit and deliver a telegraphic message from Birmingham, Ala., to Raleigh, Ga.; the plaintiff being the sender of the message. In rulings on the pleading adverse to defendant, including the overruling of a motion to strike the claim for damages for mental distress from the complaint, and in refusing instructions requested by the defendant, the trial court committed errors according to the apt authority afforded by the recent decision delivered here in Western Union Telegraph Co. v. Hawkins, 73 So. 973, where it was held that the assertion by the United States of its powers over interstate commerce of this character, through the amending act of Congress of June 18, 1910, c. 309, § 7, 36 U.S. Stat. at Large, p. 539 (Comp. Stat. of U.S. 1916, § 8563), in connection with the Carmack Amendment of the Interstate Commerce Act (34 U.S. Stat. at Large 584, Comp. Stat. 1916, §§ 8604a, 8604aa), effected to supersede state laws, including rules established by decision of the state court, bearing upon the subject of liability with respect to this particular subject of interstate commerce, and, at the same time, imposed upon the subject-matter the superior, dominant, pertinent rules of law sanctioned by the federal authority.

The writer entertained, and this court en banc approved, a different conclusion in W. U. Telegraph Co. v. Favish, 71 So. 183. I am still disposed to think that the stated doctrine of W. U. Telegraph Co. v. Hawkins, supra, is not to be justified, though it must be conceded that there are decisions directly supporting it. In any event, I would prefer that the Supreme Court of the United States express its supreme judgment on the question before committing the Supreme Court of Alabama to so profound a change from what has been regarded as established law in this jurisdiction. I do not read the decision in W. U. Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L.Ed. 1457, to the effect accorded it in the opinion in our Hawkins Case, supra. And I am unable to reconcile the view prevailing in our Hawkins Case with the doctrine announced and elaborated in West. Union Telegraph Co. v. Milling Co., 218 U.S. 406, 31 Sup. Ct. 59, 54 L.Ed. 1088, 36 L.R.A. (N.S.) 220, 21 Ann. Cas. 815. The necessary application of the authority of our Hawkins Case requires a reversal of the judgment.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.