The Western Union Telegraph Company v. Lawson
| Decision Date | 11 April 1903 |
| Docket Number | 13,075 |
| Citation | 72 P. 283,66 Kan. 660 |
| Parties | THE WESTERN UNION TELEGRAPH COMPANY v. MOSE LAWSON |
| Court | Kansas Supreme Court |
Decided January, 1903.
Error from Rice district court; ANSEL R. CLARK, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. TELEGRAPH COMPANY -- Actual Damages. Money paid for the transmission and delivery of a telegraphic message is recoverable as actual damages in an action to recover damages for the nondelivery of such message.
2. TELEGRAPH COMPANY -- Exemplary Damages. Exemplary damages are recoverable against a telegraph company by the sender of a death message, if through the gross negligence of the agents of the company such telegram be not delivered.
George H. Fearons, and Rossington, Smith & Histed, for plaintiff in error.
Samuel Jones, and C. F. Foley, for defendant in error.
OPINION
The plaintiff in error prosecutes this proceeding to reverse a judgment awarding actual and exemplary damages against it for the non-delivery of a death telegram. Two contentions are urged: (1) That exemplary damages cannot be awarded in any case unless the party is entitled to, and is awarded, actual damages; that no actual damages were recoverable or awarded in this case, and, therefore, a judgment for exemplary damage is erroneous; (2) that the evidence does not tend to show that plaintiff in error, in not more promptly delivering the telegram, was guilty of that degree of negligence that will warrant a finding or judgment for exemplary damages.
It appears that plaintiff below, Mose Lawson, and wife lived at Olathe, Kan., and that Mrs. Newby, a married daughter, lived with her husband, David Newby, at Lyons, Kan. On October 22, 1900, Mose Lawson prepaid and delivered to the defendant's agent at Olathe, to be transmitted and delivered to David Newby at Lyons, Kan., the following telegram:
This telegram was received at the company's office at Lyons on the morning of the day it was sent, but was not delivered until October 29, when Newby called at the office and inquired for it.
The petition contained sufficient allegations to entitle plaintiff to recover any actual or exemplary damages which he could establish by evidence.
David Newby had lived in Lyons some five or six months prior to the transmission of the telegram. He was a harness-maker and worked in the harness shop of one Swenson on the public square in Lyons, and part of the time waited on customers. His residence was about a block from the post-office where he received his mail. He had an acquaintance with most all of the business men of the city, who, when he visited their places of business, called him by name.
The messenger boy to whom the message was given for delivery had lived at Lyons about ten years. He saw the message, but did not know whether it was a death message or that some one was sick; he did not know Newby, but supposed he was a traveling man. In an attempt to deliver the message he went to both hotels, looked over the registers, and not finding Newby registered inquired of the proprietors about him, neither of whom could give him any information. He then returned, without further inquiry, and reported that he was Unable to find the addressee, and delivered the message to the agent in charge of the office. The message was hung on a hook, where it remained without further effort to deliver it until called for by Newby several days thereafter.
We do not agree with counsel that no actual damages were recoverable or awarded in this action. The plaintiff prepaid the charges for the transmission and delivery of the message and one cent in addition for a revenue stamp, amounting to fifty cents. This constitutes actual damages; the amount paid is not determinative of the question whether damages are actual or nominal. Actual damages are such losses as are actually sustained and are susceptible of ascertainment. Nominal damages arise by implication of law for the violation of the rights of another from which injury arises,...
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Cope v. Kansas Power & Light Co.
...The term 'wantonness' as here used does not necessarily mean malice, but a reckless disregard of the rights of others. (Telegraph Co. v. Lawson, 66 Kan. 660, 72 P. 283.) In Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822, in defining gross and wanton negligence, it was 'To con......
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...disregard of the rights of others.' " Allman v. Bird, 186 Kan. 802, 805, 353 P.2d 216 (1960), citing from Telegraph Co. v. Lawson, 66 Kan. 660, 662-3, 72 P. 283 (1903). .... " 'To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be......
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