Meridian Star v. Kay, 37942

• Decision Date: 23 April 1951
• Docket Number: No. 37942,37942
• Citation: 52 So.2d 35,211 Miss. 536
• Court: Mississippi Supreme Court
• Parties: MERIDIAN STAR v. KAY et al.

Page 35

52 So.2d 35

211 Miss. 536

MERIDIAN STAR v. KAY et al.

No. 37942.

Supreme Court of Mississippi, Division B.

April 23, 1951.

Broach & Ethridge, J. V. Gipson, and M. V. B. Miller, all of Meridian, for appellant.

Snow & Covington, Meridian, for appellee.

ROBERDS, Presiding Judge.

In December, 1946, appellant, a corporation, was the publisher of a newspaper, and appellee, a partnership, operated a mercantile business, in the city of Meridian, Mississippi. In this opinion we will call appellant The Star and appellee Kay's. Kay's engaged The Star to run an advertisement in the paper of a clearance sale of its entire stock of fall and winter coats, suits and dresses at a reduction of one-fourth off the regular prices. Through error the merchandise was advertised for sale at fifty percent off. Negotiations were had between the parties as to the best method to be adopted under the circumstances and Kay's elected to proceed with the sale at fifty percent reduction. Kay's then sued The Star for damages for the error and recovered a judgment for four thousand dollars. The Star appealed to this Court. The original opinion was handed down June 13, 1949, 207 Miss. 78, 41 So.2d 30, 10 A.L.R.2d 677, and the opinion on the suggestion of error was rendered July 14, 1949, 207 Miss. 91, 41 So.2d 746. These opinions set out the essential facts of the controversy and announce the governing principles of law. The case was reversed and remanded for a new trial. On the former appeal it was adjudged that the action was in tort; that liability existed against The Star for at least nominal damage and, in addition, for such actual damage as plaintiff might be able to establish by proper evidence as naturally resulted from such error, plaintiff being under duty to use reasonably available measures to mitigate the damage, and approved the method used by plaintiff to establish the amount of the damage. The former appeal left open on retrial (1) the establishment, by proper proof, of the actual amount of damage resulting from the error, (2) whether or not Kay's election to proceed with the sale at fifty percent reduction, as erroneously advertised, rather than adopt one or all of the remedial methods suggested by The Star, was a reasonable action on the part of Kay's, and (3) whether the advertisement did, or did not, include fur coats. Retrial resulted in a verdict and judgment for Kay's in the amount of $1276.92, from which this appeal is taken by The Star.

Appellant raises a number of qeustions on this appeal but, in our view, it is only necessary to discuss three of them. They are, first, whether the evidence of usages and customs, as offered by appellant and excluded by the lower court, was competent; second, whether plaintiff failed to prove the amount of actual damage in the manner required by applicable rules of law and evidence; third, whether the jury should have been permitted to find, if it did so find, that fur coats were included within the advertisement.

On the first question it is disclosed that this error was discovered by Kay's around noon on Sunday, December 15th, date of its first publication; that The Star office was then closed; that, after some effort, Kay's contacted the advertising manager of The Star between seven and eight o'clock Monday morning, and they discussed the error and Kay's sought suggestions as to how the situation might be remedied; that the manager suggested that the next issue of the paper might carry a correction; The Star could give Kay's a letter admitting the error and also place a streamer above the store door acknowledging the error. Kay's then tried to contact the publisher, which he was not able to do until the middle of the afternoon, when the same remedial suggestions were made by the publisher. Mr. Kay, one of the partners, explained to both the advertising manager and the publisher that he did not think the situation could be remedied in this manner. He thought a correction in the paper that day, made after he had consulted the publisher, would be too late to notify customers of the error and prevent their appearing at the sale. Indeed, he explained to the publisher that many customers had already appeared at the store. As to the proposed letter and streamer, he explained to representatives of The Star that Kay's had been in business in Meridian for some thirteen years; that it had built up a reputation for honesty and fair dealing; that to call off the sale, or try to adjust it on the correct basis of one-fourth discount, would cause customers to lose confidence and faith in future sales, and the honesty and fair dealing of the merchant, and greatly damage Kay's; that it was not practicable to stand at the door and show customers the letter and call attention to the streamer acknowledging that the paper had made this mistake. Mr. Sidney Kay testified that Mr. Skewes, the publisher, agreed that the best course was to go ahead with the sale as advertised. He said Skewes told him to hold the sale as advertised and keep a record of the sales; that he would discuss the matter with the advertising director of the paper and let Kay's hear from him; that nothing further was heard from The Star and on December 18th Kay's wrote The Star about the matter, saying the sales were running high; that Kay's was keeping 'may sales tickets on merchandise sold, and which falls within the terms of the advertisement separate from tickets showing sales of merchandise which does not fall within that category'. On the same day The Star replied to that letter, saying, in part, 'As we understand the situation: our liability--if and--is limited to the difference between '1/4 off' and '1/2 off' merchandise actually sold as a result of the 40-inch ad in question'.

Now, in that situation defendant offered evidence of several newspaper publishers, as well as that of some merchants, of a number of mistakes which had been made in ads by newspapers, and that it was the custom of the newspapers to remedy that...