Doherty v. Mississippi Power Co.

• Decision Date: 22 March 1937
• Docket Number: 32311
• Citation: 173 So. 287,178 Miss. 204
• Court: Mississippi Supreme Court
• Parties: DOHERTY v. MISSISSIPPI POWER CO

173 So. 287

178 Miss. 204

DOHERTY v. MISSISSIPPI POWER CO

No. 32311

Supreme Court of Mississippi

March 22, 1937

Division A

Suggestion Of Error Overruled April 19, 1937.

APPEAL from circuit court of Forrest county HON W. J. PACK, Judge.

Action by Mrs. George Doherty against the Mississippi Power Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

F. M. Morris, of Hattiesburg, for appellant.

The elements necessary for the allowance of punitive damages are that the actions of the defendant were prompted by willful and conscious wrong, or by actual malice, or by conduct so grossly negligent and inexcusable as to amount tea reckless disregard of the rights of the opposite party.

Bounds v. Watts, 159 Miss. 307, 131 So. 804.

We earnestly submit that the action of the appellee in this instance amounts to "willful and conscious wrong," or that its conduct is so grossly negligent and inexcusable as to amount to a reckless disregard as to the rights of the opposite party.

I. C. R. R. Co. v. Ramsey, 127 So. 725, 157 Miss. 82.

In the Ramsey case the railroad company was under contract to deliver Mrs. Ramsey to Senatobia, Mississippi, and upon being requested by her in ample time to permit her to stop at Senatobia, refused to do so and carried her beyond. And punitive damages were approved. In this case Mrs. Doherty, the appellant, was under contract with the appellee to furnish her electricity as long as she paid the monthly statements rendered to her and for which she had paid a sum of money as security upon which on June 6, 1935, the appellee owed her interest in excess of the amount of her current electric bill and requested that the interest due to her by appellee be credited upon her electric bill, and that the service be not discontinued. And in disregard of such request, the appellee cut off the electric current. We submit that on the facts in this case it is not in its facts in any wise dissimilar from the case at bar, and that it should be controlling upon the facts here.

By the analogy of these two cases we sincerely submit that the peremptory instruction of the court below should be reversed and the cause remanded for a determination of the amount of damages by a jury.

Vicksburg Waterworks Co. v. Dutton, 98 Miss. 209, 53 So. 537; Miss. Power Co. v. Harper, 145 So. 887.

Appellant further contends that even if she should be mistaken in the first position here assumed, that the court nevertheless erred in granting the peremptory instruction against the appellant, and that this question should have been submitted to the jury to determine the amount of actual damages resulting therefrom.

Miss. Power Co. v. Byrd, 160 Miss. 71, 133 So. 193; Telephone & Telegraph Co. v. Hobart, 89 Miss. 252, 49 So. 349; Meridian Light & Ry. Co. v. Steele, 121 Miss. 114, 83 So. 414.

Even if the appellant was not entitled to any actual damages whatsoever because of the wrong done to her, conceding this, for this purpose only, that the negligence was mere simple negligence, even then appellant would have been entitled to nominal damages if she had, in fact, suffered no actual damages. Clearly, without question, under the facts of this case the appellant is entitled to nominal damages because of the breach of the contract between her and the appellee.

William Foerester & Co. v. Faulk Christian Lbr. Co., 105 Miss. 612, 62 So. 648; McGehee v. Laurel Light & Ry. Co., 113 Miss. 603, 74 So. 434; Montgomery Ward & Co. v. Hutchinson, 173 Miss. 701, 159 So. 862.

Wilbourn, Miller & Wilbourn, of Meridian, and Heidelberg & Roberts, of Hattiesburg, for appellee.

There can be no recovery for mental pain, or anxiety, or worry, or mental annoyance not brought about by a physical injury, except as a part of punitive damages.

Grenada Bank v. Lester, 126 Miss. 442, 89 So. 2.

This court has many times held that there can be no recovery of actual damages for annoyance, worry, or mental anguish, disconnected from physical suffering.

G. & S. I. R. R. Co. v. Beard, 129 Miss. 843, 93 So. 357; Western Union Tel. Co. v. Rogers, 68 Miss. 748; Western Union Tel. Co. v. Koonce, 112 Miss. 173, 72 So. 893; Chicago R. R. Co. v. Scurr, 59 Miss. 456.

We respectfully submit that even if it should be conceded, which we certainly do not concede, that the defendant was guilty of any negligence whatsoever or any wrong in disconnecting the lights under the circumstances shown by this record, still, there was nothing in its conduct which would justify the infliction of punitive damages.

Bounds v. Watts, 159 Miss. 307, 131 So. 804; N. O. J. & G. N. R. R. Co. v. Statham, 42 Miss. 607.

To authorize the infliction of punitive damages, the wrongful act complained of must either be intentional, or result from such gross disregard of the rights of the complaining party as amounts to wilfulness on the part of the wrongdoer.

I. C. R. R. Co. v. Ramsay, 157 Miss. 82, 127 So. 725; Y. & M. V. R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; N. O. & N. E. R. R. Co. v. Martin, 140 Miss. 410, 105 So. 864.

In the case at bar, the facts not justifying the infliction of punitive damages, it follows also that the appellant was not entitled to recover for mental suffering, annoyance, worry, etc., or any condition resulting from such mental condition.

Appellant is not entitled to actual or compensatory damages.

Miss. Power Co. v. Harper, 145 So. 887.

In order to recover actual damages for inconvenience and annoyance, it must be physical inconvenience and annoyance. None was shown to have been sustained by the appellant in this case.

Appellant is not entitled to nominal damages.

If nominal damages were recoverable in a case of this kind, then in the Harper case, supra, the court instead of reversing the judgment and rendering judgment in favor of appellant, would have reversed the cause and remanded it for the assessment of nominal damages only.

It is manifest that interest on the deposit is payable only as and when the principal thereof was due to be returned, namely, on discontinuance of the service, unless the customer saw fit to request it to be paid annually. If the customer made no request for annual payments, the interest was not due until discontinuance of service. It was not claimed that any request or demand had been made for the payment of the interest annually. In the absence of such request, annual interest was not due. Since no request for annual payments had been made, the company was not obligated to pay interest until a discontinuance of service.

We further contend that the claim of the appellant against appellee for interest was not one that could bo lawfully interposed as an offset against an admittedly just and past due bill for services, and we think our position in this regard is sustained by the following cases:

Central Louisiana Power Co. v. Thomas, 145 Miss. 352, 110 So. 673, 111 So. 142; Cospelich v. Miss. Power Co., 164 Miss. 88, 144 So. 38; Arnold v. Ala. Power Co., 206 Ala. 506, 90 So. 909; Georgia Ry. & Power Co. v. Peck, 17 Ga.App. 652, 88 S.E. 33; Hick v. Carolina Lt. & Power Co., 179 S.E. 322.

Argued orally by F. M. Morris, for appellant and by Rowland W. Heidelberg, for appellee.

OPINION

Cook, J.

This suit was instituted by the appellant, Mrs. George Doherty, against the appellee, Mississippi Power Company, seeking to recover actual and punitive damages for the alleged willful and wanton wrong on the part of the appellee in disconnecting the appellant's electric lights on the afternoon of June 6, 1935.

The declaration charged that on April 20, 1929, the appellant became a customer of the power company, and was then required by the rules of the company to deposit the sum of $ 5 as security for the payment of her bills for electric current, and that appellee delivered to her its customer's receipt for this $ 5 in which it agreed to pay interest thereon at the rate of 8 per cent. per annum, "payable when deposit is returned, or annually as earned upon request of depositor, provided depositor has been served by the company longer than six months." It was further charged that on June 6, 1935, the appellant owed appellee a bill of $ 2.26 for electric current consumed by her for a period of two months, which she was unable to pay; that upon demand for the payment of this past-due indebtedness, she informed the appellee that she was pregnant, and had been ill for some months, and was in a highly nervous condition; that to avoid being disturbed she requested appellee to credit her bill with the accrued interest on her deposit, which, it was alleged, amounted to $ 2.44, or 18 cents more than the amount of the debt owing by her to the appellee; and that appellee willfully, purposely, and with the deliberate design to intimidate and humiliate the appellant, refused to so credit the interest due her.

The declaration further charged that appellant's lights were wrongfully disconnected on June 6, 1935; that during the afternoon of June 7, 1935, her husband carried the deposit receipt to appellee's office, whereupon it was admitted that the appellee owed the appellant more than the amount of her past-due bill; that appellee then offset this interest against the amount of her bill, and paid to her husband the balance of 18 cents due her as interest, and immediately reconnected her lights.

It was further charged that on account of the worry and humiliation incident to the controversy between her and the agents of the appellee, and the following disconnection of her lights, she was made so highly nervous that she became so ill that she was threatened with a miscarriage and required the services of a physician for a number of days thereafter, and that as a result she suffered...