Western Union Tel. Co. v. Robertson

• Decision Date: 11 October 1915
• Docket Number: 16986
• Citation: 109 Miss. 775,69 So. 680
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH COMPANY v. ROBERTSON

69 So. 680

109 Miss. 775

WESTERN UNION TELEGRAPH COMPANY v. ROBERTSON

No. 16986

Supreme Court of Mississippi

October 11, 1915

APPEAL from the circuit court of Adams county. HON. E. E. BROWN Judge.

Suit by Mrs. Gussie Robertson against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

J. B Harris, for appellee.

The message, as the court will see, was an interstate message from Natchez, in the state of Mississippi, to New Orleans, in the state of Louisiana, and the rules for awarding damages in any aspect of the case in the two jurisdictions are different. The court seems to have taken the view that there was evidence in the case warranting the imposition of punitive damages. Whether this evidence arose from acts done in Mississippi or acts done in Louisiana do not appear.

In Mississippi, the rule is that the principal is liable in punitive damages where the act is done by the agent in the course of his employment, whether authorized by the principal or not.

In Louisiana, the rule is that in order to render the principal liable in punitive damages for the act of the agent, the principal must authorize the act or subsequently ratify it. For Louisiana rule, see, Ingram v. Light & Power Co., 55 So. 580; Patterson v. R. R. Co., 34 So. 783.

Again In Mississippi a recovery can only be had for mental anguish where the case would warrant the imposition of punitive damages. In Louisiana under the civil law, mental anguish can be recovered in a case of ordinary negligence. See Graham v. W. U. Tel. Co., 34 So. 91.

We respectfully submit, however, that in no view of this case could punitive damages be awarded because there is no evidence whatever even tending to prove wilfulness, wantonness, recklessness or gross negligence. We hardly consider it necessary at this day to refer the court to the numerous cases in this state in which the rule for punitive damages has been announced. If the rule announced by this court in two leading cases is the rule, then the instructions in this case submitting the question of punitive damages to the jury were erroneous.

In Railroad Company v. Marlett, 78 Miss. 872, the court says: "For a wilful wrong that gives a cause of action for the imposition of exemplary damages, must be denoted by a wrongful act done with a knowledge of its wrongfulness."

This rule has been repeatedly reaffirmed by this court in subsequent cases, particularly in the case of Miller v. Telegraph Company, in 97 Miss. 225, in which case the court says: "There was no evidence from which the jury could have inferred that the delay in delivering the telegrams was characterized by malice, fraud, oppression, or wilful wrong, evincing a disregard of the rights of others, or by such wanton, reckless, or grossly careless conduct is as equivalent thereto. A wrongful act, to which punitive damages are applicable, must not only be done with a knowledge of its wrongfulness, but must be characterized by one or more of the above elements," citing Railroad Co. v. Marlett, 78 Miss. 872; Cocke v. Telegraph Co., 84 Miss. 380. Other cases in point are the following: Baker v. Cumberland Telephone Co., 85 Miss. 486; Telephone Co. v. Allen, 89 Miss. 832; Hardy v. Railroad Co., 100 Miss. 132; Express Co. v. Burke & McGuire, 61 So. 312.

Now, a case could not, it seems to us, be freer from any of the circumstances enumerated in the Miller case, supra. The message was telephoned to the Natchez operator. It was addressed to the sendee at Race street. The operator got it Ray street. The court will see for itself that this was not by any means an unnatural mistake. It is a case of 'idem sonans' and if the court will undertake to pronounce the two words it will see how easy and natural it was for the operator who was receiving this message to have made this mistake. This could not even be characterized as negligence. It was a simple mistake which any one would be liable to make naturally, and this mistake was the cause of the trouble. See 37 Cyc. 1663, See specially Cameron v. W. U. Tel. Co., 74 S.E. 929, holding that there is no presumption that a message telephoned is correctly received.

It is well settled that a mistake will not warrant the imposition of punitive damages. See, 4 Ency. of Ev. page 8 (note); Inman v. Ball, 65 Iowa 543; Smith v. Walker, 57 Mich. 556; Railroad Co. v. Christmas, 89 Miss. 686; Duncan v. Tel. Co., 93 Miss. 500.

It was error to refuse the fourth and sixth instructions asked for the defendant. This much for the Mississippi end of the transaction.

This mistake having been made by the operator, the message reached New Orleans, addressed to Miss Gussie Robinson, 1016 Ray street. It is hard to conceive what more the Telegraph Company could have done after the message reached New Orleans than what was done in an effort to make the delivery. It is shown that they examined the city directory, and no such street as Ray street could be found; a message boy was sent out to Royal street supposing that that might be the street, but he could not find any such number; a postal card was mailed, addressed to "Miss Gussie Robertson, General Delivery, City," and another to "Miss Gussie, 1016 Ray street;" and a service message was sent to Natchez that there was no such street as Ray street. All of this appears clearly and unmistakably and undisputedly in the record. On the following morning, a message giving the correct address reached New Orleans, and the message was delivered at ten-forty a. m. It was a message not showing on its face any special urgency, nevertheless it is hard to conceive what else, if anything, could have been done at the New Orleans office. It does not distinctly appear upon the record at what time on Monday morning the service message was received in New Orleans, but there is nothing whatever to indicate any delay. So, we say that so far as the question of punitive damages is concerned, it must be laid out of the case. The mistake that was made was made innocently, and the operator at Natchez, Mrs. Abernathy, was acting in perfect good faith, and punitive damages can never be awarded for an act done in perfect good faith. See, Sedgwick on Damages (9 Ed.), page 745, sec. 383a.

There is no circumstance in the case which could be contorted into evidence of wilfulness or intentional wrong. So, we say, the court manifestly erred in submitting the question of punitive damages to the jury.

We submit, furthermore, that the court erred in giving to the jury the first instruction asked by the plaintiff, and in modifying the second and ninth instructions given for the defendant.

The first instruction for the plaintiff was manifestly asked upon the assumption that some negligence was shown or some circumstance tending to prove negligence in New Orleans, and the modification of the defendant's second instruction by inserting these words after the word negligence in the second line "that the delay was caused by negligence of the New Orleans office," and by inserting in the ninth instruction after the words, "mental anguish" at the close of the instruction the words "unless from the evidence they further believe that the delay was the result of negligence at the New Orleans office."

The court erred in giving the first instruction for the plaintiff and in modifying the second and ninth instructions for the defendant, because there is absolutely no evidence in record that the delay was caused by any negligence in the New Orleans office. If making a mistake in the address given over the telephone was negligence, this manifestly was the cause of the delay and this negligence, if any, occurred in Mississippi and not in Louisiana, and there can be no possible mistake about this. But, if the case is to be rested on negligence in Louisiana, if it could possibly be held that the record contains any circumstance which could be submitted to the jury on this ground, then we say that there could not be a recovery in this case of the damages claimed for two reasons:

First, because it is perfectly manifest that the injury which the plaintiff sustained or trouble to which she was subjected did not result proximately from the negligence complained of, but on account of her sick child and her anxiety and distress on that account. She says that she spent sleepless nights even after she received the telegram, and states positively that these sleepless nights were caused by her child's sickness. She had been notified that her child was dying on September First, when she sent a message telling her husband that the child had typhoid, that he had better come and bring some money. From the time of the announcement of the dying condition of her child, of course, her natural anxiety arose. Of course, her distress knew no bounds. All of this would have occurred whether her telegram would have been delayed or not. The delay in the telegram did not deprive her in any way of the comfort and society of her husband, because her husband did not intend to come and did not come. The record clearly shows that. The delay of the message did not cause any delay in her getting the money, because the message from her husband announced that he would remit the money on Tuesday, and the money was received on Tuesday, and she knew on Monday morning that the money could be sent on Tuesday. So, we say plainly the plaintiff's suffering could not be in any way the proximate result of any delay in delivering the message from her husband.

Second even if it could by any stretch be said that her suffering was caused by the delay in the message, the Telegraph Company could not be held liable because none of the special circumstances and conditions...