American Ry. Express Co. v. Bailey

• Decision Date: 12 April 1926
• Docket Number: 25127
• Citation: 142 Miss. 622,107 So. 761
• Court: Mississippi Supreme Court
• Parties: AMERICAN RY. EXPRESS CO. v. BAILEY. [*]

107 So. 761

142 Miss. 622

AMERICAN RY. EXPRESS CO. v. BAILEY. ^[*]

No. 25127

Supreme Court of Mississippi

April 12, 1926

Division A

1. BANKS AND BANKING. Pecuniary damage, if any, resulting to teacher from giving up contemplated foreign tour for educational purposes, because of defendants' failure to deliver correct amount of money cabled through their offices held dependent on so many undeterminable contingencies as not to be basis of recovery.

Where teacher of history was forced to give up contemplated tour of foreign lands for pleasure and educational purposes, because of defendants' failure to deliver correct amount of money cabled through their office, held that the pecuniary damage if any, resulting from being forced to discontinue his tour was purely speculative, depending on so many undeterminable contingencies that it was not a basis of recovery.

2. DAMAGES. Generally, punitive damages are not recoverable for breach of contract, unless attended by intentional wrong insult, abuse, or gross negligence amounting to independent tort. Generally, punitive damages are not recoverable for breach of contract, unless the breach is attended by some intentional wrong insult abuse, or gross negligence which amounts to an independent tort.

3. BANKS AND BANKING. Evidence showing negligence of company forwarding money to Shanghai, China, by failure to deliver correct amount held to negative intentional or willful wrong amounting to tort that would permit recovery of punitive damages. In suit against express company for refusal to deliver correct amount of money cabled to plaintiff at Shanghai, China, resulting in plaintiff's having to forego contemplated foreign tour, evidence, although showing negligence, held to negative any intentional or willful wrong, or gross negligence, amounting to commission of tort, so as to permit recovery of punitive damages.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Simpson county, HON. R. S. HALL, Judge.

Suit by Waldo Bailey against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

T. J. Wills and R. L. McLaurin, for appellant.

The express company in this instance is in identically the same status with the same duty and obligation with the same measure of damage, in which a banking institution would have been. In three recent cases this question has been fully considered and elaborately discussed by the New York court of appeals and the supreme courts of West Virginia and California. See Gravenhorst v. Zimmerman, 236 N.Y. 22, 139 N.E. 766; Vincenzo v. Richwood Banking & Trust Co. (W. Va.), 117 S.E. 882; Nicolletti v. Bank of Los Banos (Calif.), 214 P. 51. See also the same cases reported in 27 A. L. R. 1465-1488, and the annotated note on the subject at p. 1488 thereof.

The obligation of a telegraph company using its own instrumentalities for the transmission of money, while greater than that of a banking institution or of a commercial agency, as the American Express Company in this case, imposes no liability for a failure to deliver the message or pay the money other than the amount of money itself and the interest thereon. See Stansell v. W. U. Tel. Co., 107 F. 668, and W. U. Tel. Co. v. Hall, 287 F. 297.

This court held that mental suffering alone, unaccompanied by physical injury, would not support an award of damages against a telegraph company for mere neglect or failure to deliver a message promptly. W. U. Tel. Co. v. Rogers, 67 Miss. 748; Bonelli v. Branciere, 90 So. 245; G. & S. I. R. R. Co. v. Beard, 93 So. 357.

We cite in support of the proposition that the measure of damages is the money received on deposit, plus the interest thereon for the time held on deposit, the following cases: Adams Exp. Co. v. Egbert, 36 P. 360, 79 Am. Dec. 383; Zeigler v. Wells Fargo Co., 83 Am. Dec. 87; Altman v. W. U. Tel. Co., 84 N.Y.S. 54; Johnson v. W. U. Tel. Co., 96 S.E. 36.

The contract made with the express company was a contract in interstate commerce. See section 400, Transportation Act, section 1, par. 3; Barrett v. N. Y., 232 U.S. 14. The entry of the field of interstate commerce by Congress excludes all state laws and regulations with reference thereto. Y. & M. V. R. R. Co. v. Greenwood Gro. Co., 227 U.S. 1.

Longino, Hilton & Hilton, for appellee.

Appellant's attorneys have devoted much of their brief to the question of damages for mental suffering and have quoted numerous decisions of this court to show that damage therefor is not recoverable unless attended by physical injury or pain. Appellee agrees that such, in the main, is the rule of law in Mississippi, with perhaps the exception that where the thing done is attended by acts or circumstances showing malice, insult or oppression. 65 Miss. 17.

We are of the opinion that the acts of the defendant and its agent in this case were of such character as to amount to oppression of Mr. Bailey, as shown by the proof. But we do not think that the question of mental suffering is involved.

We come now to consider whether or not the appellee suffered actual damages on account of the defendant's conduct in the matter and if so, to what extent; and whether or not the finding of the jury for the appellee was justified by the evidence given under the instruction of the court.

Even though the defendant is presumed by law to so conduct its business with its patrons as not to damage them by its carelessness or misdeeds, yet in this case the defendant's duty did not arise simply from the presumptions of law but from its own wilful acts. The defendant simply disregarded its plain duty toward the appellee in the premises. The evidence shows the defendant to have been guilty of an outrageous blunder in the matter, to the great damage of the appellee.

The defendant was guilty of gross negligence in the conduct of the matter from the time the first telegram was received in New York from the Jackson agent at 1:45 o'clock on March 8 until the transaction was finally closed in Shanghai on March 14 thereafter; hence, the instruction of the court given to plaintiff as to punitive damage was properly given.

Appellant's attorneys insist in their brief that the special damage proved in this case is too uncertain and remote to be relied on. We understand the law to be that in cases seeming to justify special damages where there is no definite rule by which to establish the same, such cases must be left to the discretion of the jury. 44 Miss. 491.

The evidence on said point was in this case submitted to the jury along with the other proof and left to its discretion in the finding of its verdict and, we think, that upon all the evidence introduced in the cause, the instructions of the court were properly given to the plaintiff, that the finding of the jury thereon was proper and that the judgment of the lower court should be sustained.

Argued orally by T. J. Wills, for appellant, and A. H. Longino for appellee.

OPINION

COOK, J.

The appellee instituted this suit against the appellant to recover damages, both actual and punitive, and from a judgment for one thousand five hundred dollars this appeal was prosecuted.

The declaration alleges that, after the appellee had finished his college course, he chose as his life work the profession of a teacher of history, and, realizing the great educational advantages which come to a student of history from extensive travel in other countries, he began to look for opportunities which would, with his small means, enable him to visit and study in foreign lands, and thereby obtain valuable historical information; that on or about the 21st day of February, 1923, he entered the United States Consular Service in India; that the salary and traveling expenses attached to this consular service, supplemented by the money which he already had, enabled him to formulate plans for an extensive tour on his return trip from India, especially through the countries of the Orient, which would have enabled him to spend much time in studying their capitals and other places of outstanding historical significance, to his great pleasure and profit.

The declaration further charges that, on or about February 1 1924, he resigned his position on account of ill health, and started on his contemplated tour, which was to end in the United States; that, when he reached Shanghai, China, he found he would need additional funds with which to pay the expenses of the extensive trip which he had planned; that he cabled his father, Rev. T. J. Bailey, of Jackson, Miss., from the city of Shanghai, China, to send...