Postal Telegraph Cable Co. v. Christian

• Decision Date: 02 December 1912
• Docket Number: 15,522
• Citation: 102 Miss. 845,59 So. 933
• Court: Mississippi Supreme Court
• Parties: POSTAL TELEGRAPH CABLE COMPANY v. EARL D. CHRISTIAN

59 So. 933

102 Miss. 845

POSTAL TELEGRAPH CABLE COMPANY v. EARL D. CHRISTIAN

No. 15,522

Supreme Court of Mississippi

December 2, 1912

APPEAL from the circuit court of Scott county, HON.C. L. DOBBS Judge.

Suit by Earl D. Christian against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Flowers Alexander & Whitfield, for appellant.

It was not proved that the defendant's agents or servants did with respect to the handling of this message, any wrong except that they did not deliver it according to the contract. This is all that was shown. There was no attempt made to show that the agents and servants of the defendant harbored any ill will towards the plaintiff nor that they refused to try to send the message nor that they did anything that was wrongful. It was only shown that the company violated its contract. It was. not proven why it violated it nor what, if any, wrongful act occasioned the delay.

In the case of Steinberger v. Western Union Telegraph Company, 97 Miss. 260, the court held that the mere failure to deliver a message coupled with the failure of the telegraph company to offer any excuse or explanation might justify the award of punitive damages. But the court did not mean to say that willfulness or wantonness may be presumed. But it was said that a jury might with reason conclude that an act was wrongful and intentionally so if the defendant upon being chargegd with it refused to offer any excuse. The silence of the company becomes a fact in the case. It was therefore held that an admitted failure to deliver without any explanation of the failure being offered might warrant the imposition of exemplary damages.

But here there was not a failure to deliver. There was an unusual delay in making the delivery and if no explanation had been offered the jury might have been warranted in presuming that it was intentional and wrongful else the company would have explained it. But we met this presumption. We come in and make our explanation. And we prove what we did and it is not denied or discredited.

We are charged with having willfully and wantonly delayed the plaintiff's telegram. We may be subjected to punitive damages unless we offer an explanation. Our silence, under such circumstances, in the face of such charges, would be so important as that the jury might be justified in thinking that we acted willfully and in total disregard of the rights of the plaintiff. But we bring our witnesses and prove that there was a mistake, wholly unintentional, wholly without malice, fraud or oppression. Still the court says the jury may proceed to assess punitive damages against us.

This court has announced the rule in strong terms in the case of Western Union Telegraph Company v. Miller, 97 Miss. 225; Railroad v. Marlatt, 78 Miss. 872, 29 So. 62; Cocke v. Telegraph Co., 84 Miss. 380, 36 So. 392; Railroad Co. v. Dodds, 97 Miss. 865.

As above stated, this is a case in which exemplary damages were not allowable, and the court should have so informed the jury, as requested by the defendant in one of its instructions. In the case of Chicago Railroad Company v. Scurr, 59 Miss. 456, 42 Am. Rep. 373, the court says:

"That in any and all actions for damages, where proof fails to show anything that will warrant an imputation of willfulness, recklessness, or rudeness, it is the duty of the court to inform the jury, when requested to do so, that they cannot inflict punitive damages. Not to do so, in a case free from doubt, would be abdication of judicial authority, and the permission of the jury to violate the settled principles of law."

In the case of Western Union v. Miller, 93 Miss. 650, the court held that the facts justified submission of the question of punitive damages to the jury but there the plaintiff's evidence showed affirmatively an intentional wrongful act on the part of the defendant's agents and servants.

The appellee, Christian, suffered no damage which could be recovered upon proof of simple negligence. The mental disturbance, the inconvenience, the doing without supper, the getting frightened at the station, could not be recovered for in the absence of reckless or wanton wrong or such wrong as authorizes the infliction of exemplary damages.

Baskin & Wilbourn, for appellee.

Appellant's counsel asked for a peremptory instruction in this case, predicating his right for such instruction in case of Western Union Tel. Co. v. Miller, 97 Miss. 225. The court will observe from this case, that this was a suit for failure to transmit a telegram advising that a relative was very sick, and the reason assigned for the failure to deliver this telegram was that there was a strike on by the employees of the telegraph company and, therefore, it was impossible for the telegraph company to deliver said telegram. This strike was undisputed and constituted a reason for the telegraph company's failure to deliver said telegram. Nothing of that sort is the case in the instant case. No strike, no atmospheric trouble, no one interfering in any wise with the use of wire No. 15 from Shaw, Miss. to Memphis, Tennessee, and from Memphis to Forest, Miss.

The court has held in the case of Steinberger v. Western U T. Co., 97 Miss. 260, that where a telegram had not been delivered and the evidence disclosed no attempt to deliver said telegram, that the appellant having violated its duty to the appellees by not delivering the telegram, the jury could hardly escape the conclusion that the negligence of the appellant was so gross and careless as to indicate a total disregard of the appellees' rights and to warrant the jury imposing punitive damages. In the instant case not only was there a failure to deliver said telegram, but there was no valid excuse for such failure, and in addition, the telegram would not have been sent had not the appellee been assured before the sending of said telegram that it would be sent and the appellant's agents were advised by appellee that he would not go alone if there was any trouble about transmitting the telegram from Shaw, Miss., and delivering it at Forrest, Miss. And again, the direct result of the failure to transmit and deliver said telegram caused the appellee to suffer, not only mentally but physically, when left at Vicksburg without any one to look after him; and...