Trammell v. Western Union Tel. Co.
| Decision Date | 12 April 1976 |
| Citation | 57 Cal.App.3d 538,129 Cal.Rptr. 361 |
| Court | California Court of Appeals |
| Parties | Jimmie TRAMMELL, Plaintiff-Appellant and Respondent, v. The WESTERN UNION TELEGRAPH CO., Defendant-Respondent and Appellant. Civ. 34929. |
Nichols, Williams, Morgan & Digardi, Oakland, for plaintiff-appellant and respondent.
Donahue, Gallagher, Thomas & Woods, Oakland, for defendant-respondent and appellant.
Appellant Jimmie Trammell appeals from a judgment of the Alameda County Superior Court after jury verdict notwithstanding the verdict as to the punitive damages. Also The Western Union Telegraph Company appeals from the judgment against it.
1. Western Union's liability was limited to $500.
2. The judgment notwithstanding the verdict was properly granted.
Plaintiff filed a complaint against defendant The Western Union Telegraph Company (hereinafter 'Western Union') alleging that plaintiff was an employee of Marwais Steel Company (hereinafter 'Marwais Steel') who would from time to time be laid off from his said employment to be recalled to work on the basis of seniority; and that on May 5, 1971, Marwais Steel delivered to Western Union a message regarding his return to work to be delivered to plaintiff. The complaint further alleged that Western Union so negligently and carelessly transmitted and delivered said telegraph message as to cause it to be delivered to someone other than plaintiff; and that as a result of defendant's carelessness and negligence, plaintiff was deprived of his employment with Marwais Steel.
In a second cause of action, plaintiff alleged that defendant represented to Marwais Steel that they had delivered said message to him; that said misrepresentation was made in total disregard of the consequences to plaintiff and knowing that plaintiff would lose his job thereby; and that defendant was motivated by malice, ill will, oppression and fraud. Plaintiff prayed judgment for loss of wages according to proof and for punitive damages in the sum of $100,000. Defendant answered denying the charging portions of the complaint and alleged that the message was accepted by defendant subject to the terms of its standard message contract, one of the terms of which was that defendant should not be liable for nondelivery beyond the sum of $500.
A jury awarded plaintiff the sum of $13,540 plus punitive damages in the sum of $50,000. Thereafter, the court granted defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages, and provided that if its judgment in this respect were reversed on appeal, defendant's motion for a new trial was granted on the ground of insufficiency of evidence to support the verdict; and denied defendant's motion for a new trial on the issues of compensatory damages, as well as defendant's motion for judgment notwithstanding the issue of compensatory damages in excess of $500.
Plaintiff appeals from the judgment notwithstanding the verdict and the alternative order granting the new trial. Defendant appeals from the portion of the judgment as originally entered relating to punitive damages and from the portion of the judgment awarding compensatory damages in excess of $500.
Plaintiff worked for Marwais Steel as a specialist. In the spring of 1970, there was a substantial layoff of personnel at Marwais Steel, and Trammell was among those laid off. After the layoff, Trammell was eligible for rehire from the seniority list when the company had additional work and needed additional men.
In May 1971, Gus Gustavson, the plant superintendent, had a telegram sent by Mrs. Delores Miller, the payroll clerk, to Trammell telling him to report to Gustavson. At that time Gustavson had a position for Trammell.
Mrs. Miller sent a message to Western Union via a direct TELEX line from Marwais Steel to the Western Union office. That message was addressed to 19 or 20 laid off employees, including Trammell, and read, 'Please call Gus Gustavson at 524--7311 regarding return to work.'
Mrs. Miller testified that Marwais Steel required a 'Report delivery get sign on following message' treatment on such telegrams. She testified that as to the meaning of the terminology used, 'We are asking Western Union to report back to us the message was received and signed before (sic) by the party sent to'; that the man being called back to work was to sign for the telegram. Western Union personnel testified that in a 'report delivery' telegram, as above, it was proper company procedure for a responsible adult at the address given on the telegram to sign if the addressee was not there. Jerry Campbell, Western Union's customer service manager in San Francisco, stated that the proper company procedure for a situation where only the addressee can sign for the telegram was for the sender to request instructions be put on the message that a 'personal delivery only, report delivery, get signature' is required.
The telegram which Mrs. Miller requested sent to Trammell came back marked 'Addressee unknown.' Mrs. Miller then obtained a more current address, 5909 Dover Street, Oakland, and had a telegram sent to that address on May 5, 1971. She received notification from Western Union reading, 'Your telegram to Jimmie Trammell delivered at 805P 5TH.' She understood this to mean that Trammell had received Marwais Steel's message. 1 When Marwais Steel did not hear from Trammell within 48 hours, he was terminated.
In the 'report delivery' type of service used in this case, Western Union requires that the messenger delivering the telegrams get a signature from the person who Accepts the telegram on a Western Union form called a route-call record. The procedure allows the telegram to be left with any responsible adult at the same address as the addressee of the telegram. After the telegram is delivered the messenger returns the route-call record to the Western Union office, and the delivery and its time and date are reported to the sender. The route-call record with the signatures on it is then given to the delivery clerk in Western Union's Oakland office and filed in a cabinet where it is retained for six months.
In the instant case, the telegram to Trammell carried an originating wire number, assigned to the message when it came from Marwais Steel, of L OLD359. The route-call record in this case contained a space for four telegrams. The bottom space bears the number L OLD359 and shows that someone whose first name was Robert signed for the telegram. The surname is illegible, although one witness testified that it looked like 'Hanson.' There is no indication on the route-call record that the telegram was left at an address other than 5909 Dover Street, Oakland. The telegram was delivered by a messenger with 11 years experience.
On Wednesday, May 5, 1971, Trammell lived at 5909 Dover Street, Oakland, a small apartment house with each apartment having its own number. Trammell testified that no friends had stayed at the apartment, and he knew no one named Robert Hanson or Harmon.
Trammell did not receive the telegram. However, during the weekend of May 8, he learned that a friend whose seniority number was close to his own had been called back to work. On Monday, May 10, Trammell went to see Gus Gustavson at Marwais Steel to find out when he would be called back to work. Gustavson told him that a telegram had been sent, gave him a copy of the message which Marwais Steel had sent to Western Union, and explained that Trammell was terminated because he had not reported to work within the specified time. Trammell then went to the union hall and spoke with his business representative. He wanted his job back and felt the business representative could talk to Marwais Steel and help him regain his job as he had not received the telegram. The business representative called Gustavson and then told Trammell the same thing that Gustavson had, that there was nothing they could do unless Western Union admitted that they had made a mistake.
Trammell testified that after this he started calling Western Union phone numbers; that every time he reached one number, he would be given another; that he got the 'run around.' Trammell finally talked to Max Fisher, the Western Union Operations Manager in Oakland. As operations manager, Fisher was in charge of general supervision over the operating functions in the main office, as well as the branch offices and agencies in his area. Trammell testified that he told Fisher that the only way be could get his job back was if some official with Western Union admitted that a mistake had been made; that he did not receive the telegram because someone at Western Union had made a mistake; and that he needed his job because it was his livelihood. Trammell testified that Fisher told him if Western Union said he received the telegram, than as far as Fisher was concerned he had received it, and if Trammell cared to take the matter further he should get an attorney. Trammell stated that he called Fisher again explaining that he would lose his job unless Fisher gave him a letter saying that Western Union had made a mistake, and that Fisher refused to do anything for him.
Western Union presented evidence that prior to the incident in question the union had negotiated an agreement with Western Union resulting in a move of all customer complaint and service activities from Oakland to San Francisco. Under the union contract all customer service calls were required to be transferred to customer service in San Francisco. Under certain circumstances, such as when a customer physically came into the office or when a customer insisted that the complaint be taken and that he not be switched to San Francisco, the information would be taken down on a customer inquiry report from and forwarded to San Francisco. This was done in the instant case by Fisher.
Fisher...
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