Cumberland Telephone & Telegraph Company v. Allen

• Decision Date: 14 January 1907
• Citation: 89 Miss. 832,42 So. 666
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. DYE ALLEN
• Court: Mississippi Supreme Court

42 So. 666

89 Miss. 832

CUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. DYE ALLEN

Supreme Court of Mississippi

January 14, 1907

November 1906

FROM the circuit court of Tate county, HON. JAMES B. BOOTHE Judge.

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

Plaintiff sought to recover compensatory and punitive damages because of the failure of the defendant to furnish him telephone connection. The plaintiff, being at Wheatley, Arkansas, and desirous of learning the condition of his wife, whom he had left ill at Senatobia, Mississippi, applied, early in the morning, through the American Telephone Company for long distance telephone connection with his brother-in-law, one Burton, at Senatobia, of whose home the wife was an inmate. The defendant's telephone line is the only one reaching Senatobia, and the telephone office at Wheatley, as defendant's agent, required of plaintiff a messenger's fee to be paid, and it was paid to the defendant company as compensation for sending for Burton and asking him to come to a long distance telephone at Senatobia Burton having no telephone in his home. The Wheatley office promptly notified defendant's Senatobia office of the call for Burton, and urged defendant to have that gentleman come to the telephone. The Senatobia office, not having a regular messenger service, engaged a fifteen-year-old boy to notify Burton, but the youngster made no report of having done so. The Wheatley office, at the instance of plaintiff, continued to make insistent calls for Burton, and defendant, about one o'clock in the afternoon of the day, sent out a second messenger who, within a few hours, falsely reported that Burton could not be found. The first messenger, as was developed on the trial, notified a son of Burton's, with whom he played during the day, that his father was wanted at the long distance telephone, the messenger claiming that he so informed Burton's son at about noon; but the son claimed that the notice was not given him until six o'clock in the evening, about dark, after he and the messenger had been playing together most of the afternoon. The plaintiff remained at Wheatley all day, until six o'clock in the evening, to telephone to Burton, but was unable to do so, for the reasons stated. Burton, upon being notified by his son shortly after six o'clock in the evening, hastened to the defendant company's office in Senatobia, but was informed by the Wheatley office that plaintiff had left. Plaintiff was never repaid the twenty-five cents messenger fee which passed into defendant's hands, and subsequently instituted this suit against the defendant company. The jury awarded him $ 250 damages. The only actual damages proved were the twenty-five cents messenger fee paid and not returned, and time lost. Plaintiff contended that the failure to notify Burton, who was within easy reach of the telephone office, and who was well known in Senatobia, was such negligence as warranted punitive damages.

The second instruction, referred to in the opinion, was as follows:

"2. If the jury believe from the evidence that plaintiff is entitled to recover, and if they further believe from the evidence that the failure to notify the party wanted was grossly negligent, willful or oppressive, or showed a disregard of the rights of plaintiff, then the jury are not confined to actual damages, but may assess such punitive damages as the jury deem proper, as a punishment for the wrong done to plaintiff, not to exceed $ 1,000, the amount sued for."

The granting of this instruction by the court was assigned as error by appellant, as was also the refusal of the court to grant an instruction that plaintiff should recover only actual damages.

Case reversed and remanded.

Harris & Powell, for appellant.

The evidence did not justify a finding of willful wrong on the part of the appellant. Every reasonable effort was made to find Burton, the brother-in-law of appellee, at Senatobia. There was nothing at any time to indicate to the appellant that the damage sued for would result from the failure to deliver the telephone call promptly. The call itself was merely for some one to come to the telephone at Senatobia. Appellant admits that it would have been easy for him to telegraph, after discovering that he could get no response by telephone.

The only question raised by the conflicting testimony was whether there was failure of such diligence on the part of appellant as would entitle the appellee to actual damages, if any had been sustained. This court has held, in the case of Vicksburg, etc., Co. v. Marlett, 78 Miss. 872 (S.C. 29 So. 62), that punitive damages are recoverable only where the acts complained of are characterized by malice, fraud, oppression or willful wrong, evincing a disregard of the rights of others. The opinion in that case states that a "willful wrong that gives a cause of action for the imposition of exemplary damages must be denoted by a wrongful act done with a knowledge of its wrongfulness." This rule was again reiterated by this court in the case of Telephone Co. v. Baker, 85 Miss. 486 (S.C., 37 So. 1012). See, also, Dorrah v. Railroad Co., 65 Miss. 14 (S.C., 3 So. 36); Telegraph Co. v. Rogers, 68 Miss. 748 (S.C., 9 So. 823), and Telegraph Co. v. Pearce, 82 Miss. 487 (S.C., 34 So. 152); Hilley v. Telegraph Co., 85 Miss. 67 (S.C., 37 So. 556); Telegraph Co. v. Spratley, 84 Miss. 86 (S.C., 36 So. 188).

Since the decision of the case of Watson v. Telegaph Co., 82 Miss. 101 (S.C., 33 So. 776), the impression seems to prevail that a telegraph or telephone company is liable in punitive damages in almost any case of delay in the delivery of a message, but the Watson case is not at all a parallel case with the one at bar. That was a case of a message announcing the death of the plaintiff's husband. Practically no effort was made to deliver the message. The proof on the part of the company was that a negro porter had gone out and made some little inquiry among some...