Western Union Telegraph Co. v. Miller

• Decision Date: 19 October 1908
• Citation: 47 So. 377,93 Miss. 658
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH COMPANY v. FELIX MILLER

47 So. 377

93 Miss. 658

WESTERN UNION TELEGRAPH COMPANY v. FELIX MILLER

Supreme Court of Mississippi

October 19, 1908

October 1908

FROM the circuit court of Madison county, HON. WILEY H. POTTER Judge.

Hiller, appellee, was plaintiff in the court below; the telegraph company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The appellee was in Lynchburg, Va., and, being advised that his mother was sick in Canton, Miss. sent a telegram to his brother, E. Hiller, at Canton, as follows: "Wire me ma's condition and will come home if necessary."

This message was delivered to the telegraph office in Lynchburg Va., at 1 o'clock in the day, was received by the Canton office of the company at 7 p. m. of the same day. The message was given to a messenger boy for delivery at 9 o'clock p m., the same evening and he took it to another man, named Hiller, who advised him of the mistake, and the messenger boy informed the agent of the telegraph company of what had been done and was instructed by the agent to wait until next morning to deliver it. The message was delivered the following morning, between 7 and 8 o'clock. The testimony shows that E Hiller's place of business and residence were both within two city blocks of the telegraph office. Felix Hiller, receiving no answer to his telegram, sent a night dispatch advising his brother that he would return at once, and left Virginia for Canton, before doing so, however, he made several trips to the telegraph office to inquire for an answer. He left Virginia at 6 o'clock on the morning after he sent the night message and upon his arrival in Canton found that his mother was not much sick and that there was no necessity for his coming, which would have been avoided, had his telegram been delivered promptly. He brought suit against the company for damages, and was awarded $ 67 actual damages and $ 1,000 punitive damages.

Judgment reversed and remanded.

Harris & Willing, for appellant.

There is nothing whatever in plaintiff's case which can be taken as evidence of wilfulness or "as negligence so gross as to evince an utter disregard for the plaintiff's rights," to use the language of the instructions given for the plaintiff. If it was the idea of the court that the statement of the operator to the messenger boy that he need not deliver the message until the next morning, is taken as evincing a wilful wrong we say this affords no warrant for such a view. The messenger boy, a witness for the plaintiff, testified that the message he had, and was telephoning about, was a night message; the record shows that a night message was sent; and if it was a night message, as shown by the contract on the fact of the message itself, the message was not to be delivered until the following day. So manifestly, this cannot be treated as wilfulness, or as gross negligence, or as tending to prove it, or as negligence at all Telephone Co. v. Baker, 85 Miss. 486.

Surely, the court would not hold that the plaintiff could disregard the testimony of one of his witnesses and take the testimony of the other, to suppport his claim for punitive damages. The messenger boy was not an employee of the telegraph company; and he testified that the message which he was talking about, and which he delivered in the morning, was the night message, and that he had received the message from the office at about 8 or 9 o'clock at night.

Surely this court will not allow such a monstrous judgment for punitive damages to stand. In this sort of a case, there must be some clear testimony which would support a verdict for willful wrong; and we earnestly insist that there is no such testimony in this case. There might have been negligence, but there is no wilful wrong shown; and this court has laid down in the clearest and most unmistakable terms the principle governing the award of punitive damages.

In the case of Railroad Co. v. Marlett, 78 Miss. 872, 29 So. 62, this court said:

"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."Telephone Co. v. Allen, 89 Miss. 832.

Pratt & Reid, for appellee.

Counsel for appellant urge very strongly upon the court that this is not a case for infliction of punitive damages, but when they go into details in their argument, we find that it is based upon the idea that the message which was delayed in delivery was the night message. We frankly concede that this would not be a case for punitive damages if the message delayed was the night message, but if we accept the state of facts which the jury accepted, and hold that the message delayed was the message declared upon, then we confidently assert that this is a most proper case for the infliction of...