Magouirk v. Western Union Telegraph Company

• Decision Date: 03 February 1902
• Citation: 31 So. 206,79 Miss. 632
• Court: Mississippi Supreme Court
• Parties: LOLA MAGOUIRK v. WESTERN UNION TELEGRAPH COMPANY

31 So. 206

79 Miss. 632

LOLA MAGOUIRK v. WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Mississippi

February 3, 1902

October 1901

FROM the circuit court of Jones county. HON. JOHN R. ENOCHS Judge.

Appellant Miss Magouirk, who was plaintiff in the court below, brought this suit against the Western Union Telegraph Company defendant there, to recover damages alleged to have been caused by the sending of a dispatch over the company's wires, which is averred in the declaration to have been a bogus telegram, forged by one Cooper, an agent of the company. The dispatch complained of is as follows:

"To Mr. Gann, Ellisville: Be sure to go to Heidelberg. Am on excursion. Lola Mc."

The plaintiff was an unmarried woman, and the telegram was by the company's agent at Ellisville, in due course, delivered to Mr. Gann, who was an unmarried man, with whom plaintiff had only a casual acquaintance. Cooper, after sending the dispatch, openly and publicly boasted of having sent it, and paraded its contents to the public. At the trial of the case in the court below the following question was asked a witness by counsel for plaintiff: "State whether or not Cooper at this time--at the time of sending this telegram--was a man given to drinking excessively, and whether or not he was a man that was boisterous and rough in his general deportment." To which the witness answered: "Mr Cooper drank frequently. While he wasn't drinking he was a peaceable and quiet man. While he was drinking he was one of the boys." This question and answer were, on motion of defendant, excluded by the court, and, after all the evidence for plaintiff was in, a peremptory instruction was granted for defendant. From the judgment of the court below, in defendant's favor, the plaintiff appealed to the supreme court.

Reversed and remanded.

Shannon & Street and A. S. Bozeman, for appellant.

The excluded testimony relative to the agent's habits was competent, as tending to show the telegraph company had contributed to the wrongful act by placing in a position of trust a man of vicious habits and one likely to do the very act complained of. Railroad Co. v. Patton, 31 Miss, 156.

This is not an action for negligence of the agent, but an action for a willful wrong; and, although this court has declined to follow the decisions of many other states holding that damages for mental suffering alone are recoverable in actions for mere negligence, where no physical injury is suffered, still, it has affirmed the rule that damages for mental suffering alone are recoverable in cases of willful wrong, especially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party. Telegraph Co. v. Rogers, 68 Miss. 756.

It is the settled law in this state, since the decision of this court in Richberger v. Express Co., 73 Miss. 161, that the master is liable for the willful acts of his servant done in the master's business. By the masterful opinion of the court in this case, by Justice Whitfield, the old doctrine of McManus v. Crickett is repudiated; our own earlier cases of McCoy v. McKowen, 26 Miss. 487, and Railroad Co. v. Harrison, 48 Miss. 112, are overruled, and the true test of the master's liability is stated to be "not whether the tort was committed in pursuance of orders from the master, or against orders; whether the master ratified or not, whether the tort was willful and malicious or not, but whether, and solely whether, the act constituting the tort was done in the master's business.." Measured by this test, the appellee is liable for the writing, sending and delivery of the false message.

The case at bar is not to be differentiated from the Richberger case, as was the case of Canton Co. v. Pool, 78 Miss. 147; but the opinion in that case rather confirms the analogy between the Richberger case and the case at bar. For in the case at bar, the appellant was engaged in business with the appellee when the tort was committed. She had gone there not for pleasure or idle curiosity, but to send a telegram, for the transaction of business, and there can be no logical separation between the sending of the true message and the forged message, both being sent at the same time and each being a duplicate of the other except as to the addressee. Bank of Palo Alto v. Pac. Post. Tel.-Cable Co., 103 F. 841, where the telegraph company was held liable for a false message concocted and transmitted by its agent for its own benefit, the court citing in support of its decision the cases of Reynolds v. White, 13 S. C., 5; Dougherty v. Wells, 7 N.W. 368; Cooley on Torts (2 ed.), 620. Upon the undisputed facts in this case not only willful wrong, but a very great wrong, was done the appellant by the servant of the appellee. Here we have a young lady, unmarried, away from her kindred, earning her own living in the little town of McHenry. She goes to the office of appellee and sends a telegram to a friend. In this she is forced to deal with the operator, Cooper, whom appellee had placed in charge of its office at that place. Cooper, inspired by the occasion and the visit of appellant to the office of appellee, writes and sends a false message, purporting to come from appellant, to an unmarried man, a mere casual acquaintance of appellant, residing at her former home, and sent it "collect," making the young man pay the charges, and urges this casual acquaintance to meet her, a young woman, at another town, where she was going...