Western Union Telegraph Co. v. Jackson
| Decision Date | 28 June 1909 |
| Docket Number | 13,936 |
| Citation | 95 Miss. 471,49 So. 737 |
| Court | Mississippi Supreme Court |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. MARTHA JACKSON |
FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.
Miss Jackson, appellee, was plaintiff in the court below; the telegraph company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.
Appellee sued the telegraph company to recover punitive damages for its failure to promptly deliver a prepaid telegram from a friend, directed to her at Summit, Mississippi, announcing the death of her brother at Jackson, Mississippi. The telegram was by the sender given to the company's agent at Jackson a few minutes after one o'clock on the afternoon of February 28, 1907, and was not delivered at appellee's address in Summit until half past three o'clock the following afternoon, March 1, a few hours after appellee had left Summit on a railroad train for New Orleans, Louisana. The telegraph company forwarded the telegram to New Orleans, and it was there delivered to appellee, but not in time for her to attend the funeral of her brother which took place in Natchez, Mississippi, March 2, 1907. If the telegram had been delivered promptly to appellee at her address in Summit she would have attended the funeral. The evidence failed to show any wilful wrong malice, oppression or other element justifying punitive damages on the part of the telegraph company in its failure to deliver the message promptly. Over the objection of the company plaintiff was allowed to offer in evidence verbal statements made to witnesses by the company's messenger who carried the delayed message to appellee's address in Summit, made several days after the delivery of the telegram to the appellee, and at a time when the messenger was not acting for the company, to the effect that the message was received at Summit during the afternoon of February 28, and no effort was made to deliver it until March 1. The defendant showed that the delay in delivery of the telegram was not intentional but was caused by the unavoidable crossing of certain of its wires which interrupted telegraphic communication for a considerable time, and that as early as possible the message was transmitted to Summit and sent by messenger to appellee's address there. The appellee demanded $ 1,999 damages, and the jury awarded her $ 250.
Reversed and remanded.
A. C. & J. W. McNair, and T. Brady, Jr., for appellant.
The court below permitted the appellee to show by her testimany and the testimony of Rose Washington that Willie Gayden, the company's messenger boy, several days after March 1 1907, while at the residence of a friend stated to such friend that the telegram was received at Summit on February 28, 1907, the day on which it was delivered at Jackson to be transmitted. It appears that at the time of such alleged statement Willie Gayden was on a private mission of a young lady connected with the company's local telegraph office at Summit, a mission having nothing whatever to do with the company's business, and that he was, at the time of such statement, acting without the scope of his regular employment as a messenger boy of the company. The appellant company promptly objected to the introduction of any such statement, but the court below overruled the objection. And later the appellant company moved to exclude all testimony relative to such statement, as not being a part of the res gestae, but the court overruled the motion. This constituted error on the part of the trial court. Moore v. Railroad Co., 59 Miss. 243; Railroad Co. v. McGowan, 62 Miss. 682; Mayes v. State, 64 Miss. 329; Jones on Telegraph, etc., Companies, § 329.
No actual damages are sued for, only punitive damages being demanded. On this line the declaration states that "the defendant, its agents and employes, wilfully, knowingly, capriciously and oppressively and unlawfully and wantonly failed, refused and neglected to deliver to her or to anyone for her the said message with the deliberate design and purpose to humiliate, harass and torture the plaintiff." The declaration further avers that the appellee, as a result of not receiving the telegram promptly, did suffer "great mental anguish and pain; destruction and shattering of her nervous system," and that as a result she "did languish for weeks in bed from nervous and mental prostration." The appellant company asked for an instruction to the effect that this was not a case for recovery of punitive damages, since no wilful or wanton wrong was shown in substantiation of the grave charges in the declaration. The court below, however, refused to grant such instruction. This was error.
Punitive damages are recoverable only where the acts complained of are characterized by malice, fraud, oppression or wilful wrong evincing a disregard of the rights of others. Telephone Company v. Allan, 89 Miss. 832. There must be some element of one or more of the qualities or properties above named and relating to the acts made the ground of action, before exemplary damages may be inflicted. Vicksburg, etc., Co. v. Marlett, 78 Miss. 873; Telegraph Company v. Spratley, 84 Miss. 86; Telephone Co. v. Baker, 85 Miss. 848; Western Union Tel. Co. v. Pierce, 82 Miss. 487; Western Union Tel. Co. v. Westmoreland, 44 So. 382.
Harris & Willing, on the same side.
There is absolutely nothing in this case to show any malice or wilful wrong on the part of the telegraph company in failing to deliver the message promptly. The telegram reads The company used diligence in attempting to deliver the message promptly, and but for an unavoidable entangling of its lines at a distant point the message would not have been delayed. ...
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