Western Union Telegraph Co. v. McLaurin

Citation108 Miss. 273,66 So. 739
Decision Date14 December 1914
Docket Number16810
CourtUnited States State Supreme Court of Mississippi
PartiesWESTERN UNION TELEGRAPH COMPANY v. MCLAURIN

APPEAL from the circuit court of Lauderdale county. HON. JNO. L BUCKLEY, Judge.

Suit by J. D. McLaurin against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and dismissed.

Harris & Potter, for appellant.

We concede that a wrong doer cannot set off against an injured party, that he too is a public offender in another distinct transaction, but in this case the telegrams in question were concerned and appellee's whole damage arose out of his unlawful cohabitation, and it is clear that if the character of Alice and appellee's unlawful relation with her were out of the case there could have been no recovery for punitive damages. Cocke v. Telegraph Co., supra. The immoral conduct of appellee with Alice must be shown as the basis for his alleged actual damages and in aggravation of the damages by way of punishment, or the case is one for only nominal damages. The case could not travel to a successful determination without the odor and strengthening of appellee's illicit intercourse.

The question that we here present is, Can the appellee have a recovery for damages that arose out of his own immoral and unlawful conduct? In Way v. Foster, 1 Allen 408, the court says: "The general doctrine that courts will not permit a party to prove his own illegal acts, in order to establish his case, is well established. They cannot listen to such proof consistently with the respect which they owe to the law and to themselves as its officers, nor has a party who acts in defiance of law any just claim to its agency in obtaining redress for damages he may have sustained in the course of his illegal transaction."

In Gilmore v. Filler, 60 L. R. A. 286, where one of the party engaged in a charivari negligently injured one of his companions, the court held that the plaintiff could not be relieved in law from the consequences of his own wrong saying: "The principle of public policy is this: Ex dolo malo oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act."

In Holt v. Green, 73 Pa. Ct. 198, the court says: "The test whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. It has been well said that the objection may often sound very ill in the mouth of the defendant, but it is not for his sake that the objection is allowed. It is founded upon principles of policy, which he shall have the advantage of contrary to the real justice between the parties. That principle of public policy is that no court will lend its aid to a party who grounds his action upon an illegal act. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its own violation." Devor v. Knonar, 84 Ill.App. 184. "It is the established law that where a plaintiff's own unlawful act concurs in causing the damage that he complains of, he cannot receive compensation for such damage." Heland v Lowell, 3 Allen 407. "A person cannot make his own illegal act the foundation of a legal right." Cooley on Torts, p. 44.

"The general principle is undoubted that a court of justice will not assist a person, who has participated in a transaction forbidden by law, to assert a right growing out of it, or to relieve himself of the consequences of his own unlawful act." Harris v. Hartfield, 71 Ill. 298.

"The law will not allow a profit from the result of wickedness, on the ground that such a result is antagonistic to public policy." O'Conner v. Press Pub. Co., 70 N.Y.S. 367. Appellees case shows that by reason of the disclosure, his sin was found out and he became ashamed and mortified at his conduct and abandoned his improper life and sought another place. And as his alleged actual damages arose out of his unlawful and immoral conduct there could be no recovery on that account.

F. V. Brahan, for appellee.

It makes no difference under the law, whether telegrams were immoral or not, the defendant accepted them, and it was bound to transmit and deliver them, and keep their contents secret from the world. 23 Cyc., page 1684, paragraph "E," Duty Not To Disclose. The case reported in 120 Federal Reporter, page 550, has some application to this case; it being a case, where a telegram about the sale of a horse was disclosed, and damages recovered. I think the court properly gave the three instructions asked by plaintiff, with some slight modifications, and also properly refused the defendants instructions for a peremptory, and all others asked by defendant, and refused.

If there are any chances under the law, where the defendant should be held liable for disclosing the contents of messages committed to its keeping, I submit, that this is one of them, and I think it is a wise law and our courts should approve it, and I ask, that this case be affirmed, as in my judgment, the defendant got off light with a verdict of five hundred dollars, which was due evidently to the erroneous ruling of the judge, in admitting testimony for defendants, and if he had recovered the full amount of three thousand dollars sued for, I do not believe this court would have required a remittitur on this record.

OPINION

COOK, J.

This case was begun by appellee against appellant to recover damages for injuries caused by appellant disclosing the contents of two telegrams. The messages were sent from Selma, Alabama, to appellee at Toomsuba, Mississippi, and were in the following words:

(1) "Call me up at once at 9196.

[Signed]

Alice."

(2) "Please come home, I am sick.

[Signed]

Alice."

The first message was dated November 3, 1912, and the second November 4, 1912, and each was delivered to the sendee on the day of their date.

The first telegram was written on a tissue paper train sheet and folded on itself, but was not placed in an envelope or sealed. This message was delivered to a third party by appellant, and the evidence discloses that the third party did not open or read the message. The second message was delivered by the telegraph company to a sister of the sendee, about eleven years of age, and was by her first delivered to her mother, who opened and read it, and it was then delivered to appellee. The last message was written on the same kind of paper as the first, and was not sealed or inclosed in an envelope. After reading the message, appellee's mother asked him if he was married to the sender of the telegram, and it seems from the evidence that she pursued this line of inquiry far enough to learn that "Alice" was a prostitute, and that her son had been her paramour.

It also appears that the messenger of the company at Selma disclosed the contents of the telegraphic correspondence to the friends of appellee at Selma, and it is alleged and proven that his relations with the woman of the underworld thus became public property to his humiliation and shame, caused him to lose caste with women of respectability, and ultimately forced him to resign a lucrative position at Selma to take another elsewhere less lucrative and pleasant. The wags of his acquaintance, after the disclosure of the contents of the messages, commonly called him "Alice," and the urchins of the street promptly tagged him with the same sobriquet. In short, the record tells a story that appeals to the sympathy of the sternest moralist. There can be no doubt that, when his sins had thus found him out, appellee suffered not only mentally, but also financially. Doubtless, the messenger boy did not appreciate the enormity or the consequences of his offense when he satisfied the curiosity of inquiring feminine friends of appellee by disclosing that "Alice" was a demirep and appellee was her Don Juan.

We refrain, for obvious reasons, from a further statement of the harrowing details of appellee's humiliation when it dawned on him that he had been exposed, found out, caught. Will the law compensate him for his injured feelings, or for his damaged exchequer, is the question.

It may be suggested that had the...

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    ...is undoubtedly sound in logic, and necessarily affords the true test for the guidance of the courts.Western Union Telegraph Co. v. McLaurin, 108 Miss. 273, 66 So. 739, 740 (1914). This rule in Mississippi applies to contracts cases as well, preventing relief on a claim based on a contract t......
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