Steinberger v. Western Union Telegraph Company

• Decision Date: 13 June 1910
• Citation: 52 So. 691,97 Miss. 260
• Court: Mississippi Supreme Court
• Parties: LORN STEINBERGER v. WESTERN UNION TELEGRAPH COMPANY

52 So. 691

97 Miss. 260

LORN STEINBERGER v. WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Mississippi

June 13, 1910

March 1910

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Steinberger appellant, was plaintiff in the court below; the telegraph company, appellee, was defendant there. From a judgment in favor of the defendant the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

James A. Finley, for appellant.

Proof that a telegram was unreasonably delayed in delivery or that delivery was not made at all is legally sufficient to raise a presumption of negligence and cast upon the telegraph company the burden of showing facts excusing such default. 12 Ency Ev. 410. The appellee company had in possession for over three months a telegram which was delivered to it for transmission and for which the transmission charges had been paid; and yet the telegram has never been delivered nor has any excuse for failure to deliver been offered. It is hard to conceive of a more reckless disregard for appellant's rights.

In the case of Western Union Tel. Co. v. Hiller, 93 Miss 658, 47 So. 377, where the message was delivered to the company at Lynchburg, Virginia, at one o'clock p. m., and was not delivered to addressee at Canton, Mississippi, until the next morning between seven and eight o'clock, WHITFIELD, C. J., speaking for the court said: "We are satisfied that the case was a proper one for the imposition of punitive damages."

Where there was a delay of twelve hours in the delivery of a telegram, the Texas court held this constituted gross negligence. Jones v. Roach, 54 S.W. 240.

In Thompson v. Western Union Tel. Co., 12 S.E. 427, it was held that a delay of twenty-four hours constituted gross negligence. Likewise in Western Union Tel. Co. v. Cain, 42 N.E. 655, and Western Union Tel. Co. v. McIlvoy, 55 S.W. 428, where the delay was three days.

The question of the right of the sendee is settled in Western Union Tel. Co. v. Allen, 66 Miss. 549, 6 So. 461.

J. B. Harris, for appellee.

No rule is better settled in this state than that there, can be no recovery in telegraph cases for mere mental anguish or disturbance except in eases where punitive damages are recoverable. Dorrah v. Railroad Co., 65 Miss. 14; Rogers v. Telegraph Co., 68 Miss. 748; Railroad Co. v. Marlett, 78 Miss. 872; Western Union Tel. Co. v. Spratley, 84 Miss. 86; Cock v. Western Union, Tel. Co., 84 Miss. 380; Baker v. Cumberland Co., 85 Miss. 486; Pullman Co. v. Frank, 86 Miss. 87; Cumberland Telephone Co. v. Allen, 89 Miss. 832.

In the case of Railroad Co. v. Marlett, supra, the court announced clearly the rule for infliction of punitive damages as follows: "A wilful wrong that gives a cause of action for the imposition of exemplary damages, but must be denoted by a wrongful act done with knowledge of its wrongfulness." See Cock v. Western Union Tel. Co., 84 Miss. 380.

Whether the act complained of warrants exemplary damages or not must be determined by the facts of the record in the light of the settled principles that compensation is the rule and punishment the exception justified only by circumstances of outrage, malice, oppression or wilful wrong, or in cases suited to its application, such wanton, reckless or grossly careless conduct as is equivalent to a bad intent to do hurt to body or feelings. Telephone Co. v. Baker, 85 Miss. 486; Telephone Co. v. Allen, 89 Miss. 382.

It is equally well settled that to justify the awarding of exemplary damages for wrongful acts the burden of proof is upon the plaintiff to show by competent evidence that the acts complained of were malicious and wanton. 4 Ency. Ev. 8.

Malice, fraud and wantoness are never presumed or inferred from the mere proof of a breach of a duty. This was settled in this state in the case of Williams v. Newberry, 32 Miss. 256.

There is no case to be found in the decisions of this court or elsewhere wherein punitive damages have been allowed where nothing appeared from the evidence beyond the naked failure to perform a duty. In all cases in this state there have been some peculiar circumstances of aggravation which take the case out of the rule. Watson v. Western Union Tel. Co., 82 Miss. 101; Miller v. Western Union Tel. Co., 47 So. 377.

Punitive damages are never inflicted upon a common carrier of goods by mere proof of failure to deliver the goods, or by mere proof of the loss of goods. All that such proof does is to raise a presumption of negligence, entitling the party complaining to compensatory damages, unless this presumption is rebutted by evidence offered by the carrier. See 12 Ency. Ev. 410. There is no plausible reason which can be suggested for applying a different rule to a telegraph company.

There was nothing shown in the case at bar but that a telegram had been filed with the telegraph company for transmission, and that the same was never received by the party to whom it was addressed. The telegram was not important on its face, and nothing whatever was disclosed to the company by which it could be put upon notice that any damages, such as are claimed in this case, would result from a failure to promptly transmit and deliver the message.

E. O. Sykes, Jr., on the same side.

We admit that proof of failure to transmit within a reasonable time, or a total failure to transmit, makes out a prima facie case of mere negligence, but it does not make out a prima facie case of gross, wilful or wanton negligence, for which punitive damages can be recovered. If it did, then for every breach of contract, the proof of the breach would...