Cumberland Telephone & Telegraph Co. v. Jackson

• Decision Date: 22 February 1909
• Docket Number: 13,763
• Citation: 95 Miss. 79,48 So. 614
• Parties: CUMBERLAND TELELPHONE & TELEGRAPH COMPANY v. EDWARD H. JACKSON
• Court: Mississippi Supreme Court

48 So. 614

95 Miss. 79

CUMBERLAND TELELPHONE & TELEGRAPH COMPANY v. EDWARD H. JACKSON

No. 13,763

Supreme Court of Mississippi

February 22, 1909

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Jackson appellee, was plaintiff in the court below; the telephone company, appellant, was defendant there. From a judgment in plaintiff's favor for $ 100 defendant appealed to the supreme court.

The plaintiff's wife became ill at night and needed the attention of a physician. Plaintiff endeavored by use of the telephone to call a physician, but after ringing several times got no response. He waited fifteen minutes, and then went in the night for a physician, leaving his wife in the care of a servant. After arriving at the physician's house he there tried to telephone his residence, but got no response from the exchange. He sued for $ 1,000 because of the injury suffered by the delay, anxiety, and worry on account of the illness of his wife, and demanded punitive damages. Wilfulness on the part of the employes of the telephone company was not shown, but it was shown that at night there was only two employes in the exchange, although during the daytime fifteen employes were there engaged. The court below declined to permit the jury to consider punitive damages, limiting the verdict, by a defendant's instruction, to actual damages, but gave plaintiff an instruction which permitted them to consider inconvenience anxiety, and worry as an element of actual damage.

Affirmed.

Harris & Willing, for appellant.

It is not pretended that the telephone company knew that the plaintiff's wife was ill or that they had any reason to expect that she would be ill during the night, or that the plaintiff was compelled to go for a doctor, or that he was suffering any uneasiness or mental distress, or would suffer.

It is elementary law that wilfulness and malice or wantoness are not to be presumed. Mere negligence can be presumed, and is presumed from a given state of facts, but there must be some proof more than a mere failure to discharge a, duty to justify the imposition of punitive damages. The rule is laid down in the 4th Ency. thus:

"To justify the awarding of exemplary damages for a wrongful acts, the burden of proof is upon the plaintiff to show by competent evidence that the acts complained of were malicious and wanton." See 4 Ency. of Evidence, p. 8; 69 Ia. 136; 65 Ia. 443, 22 N.W. 66; 18 Kan. 523.

We particularly call the court's attention to the cases of Western Union, etc., Co. v. Clifton, 68 Miss. 307, 8 So. 746; Jacobs v. Postal Telegraph Co., 76 Miss 278; 24 So. 535; Western Union, etc., Co. v. Pallotta, 81 Miss. 216, 32 So. 310; Johnson v. Western Union, etc., 79 Miss. 58, 29 So. 787.

The instruction with which we find fault is the first instruction given for the plaintiff.

It was tantamount to an instruction to find punitive damages, because the elements to be considered by the jury in making up its verdict could only be considerd in a case for punitive damages, where such circumstances could be testified to in aggravation of damages.

It is now settled in this state, beyond any controversy, that in cases of this character mere mental disturbances, unaccompanied with bodily injury, or evidence of intention or wilful wrong, do not constitute elements of compensatory damages, and are not subjects for compensation?

Marion W. Reily and Lemuel P. Connor, for appellee.

When appellant installed its telephone in the residence of appellee it contracted to answer his calls promptly. It is because of the fact that telephones afford almost instantaneous communication with other persons who are at a distance, that makes them desirable. Would subscribers pay the prices demanded by appellant if appellant contracted to connect its subscribers only after a subscriber had rang his telephone for fifteen minutes? Certainly not.

Appellee testified that he rang the telephone for fifteen minutes and received no response.

It is undisputed testimony that the telephone of appellee was in perfect working order on the night before the alleged wrong complained of, and also on the morning following said occasion.

The court below refused to permit the jury to award punitive damages.

But the appellant contends that the annoyance and worry of appellee was not the natural and probable result of the wrongful act of appellant, and appellant cannot therefore be responsible for them. Appellant knew the purposes for which appellee would use his telephone, or the law presumes that it knew them, and must have known that appellee would suffer annoyance and worry should appellant through its negligence fail to serve appellee when appellee required a physician to attend a member of the family desperately ill.

It is the settled law in this state that compensatory damages are not limited to pecuniary losses. Howlett v. George, 68 Miss. 703, 9 So. 885; Railroad...