Western Union Telegraph Co. v. Ramsey

• Decision Date: 11 December 1935
• Citation: 88 S.W.2d 675,261 Ky. 657
• Parties: WESTERN UNION TELEGRAPH CO. v. RAMSEY.
• Court: Kentucky Court of Appeals

88 S.W.2d 675

261 Ky. 657

WESTERN UNION TELEGRAPH CO. v. RAMSEY.

Court of Appeals of Kentucky

December 11, 1935

Appeal from Circuit Court, Pike County.

Action by J. A. Ramsey against the Western Union Telegraph Company. From an adverse judgment, the defendant appeals.

Reversed with directions.

CLAY C.J., and RATLIFF, J., dissenting.

J. J Moore and Henry J. Scott, both of Pikeville, and Edward P. Humphrey and Marvin H. Taylor, both of Louisville, for appellant.

Stratton & Stephenson and O. T. Hinton, all of Pikeville, for appellee.

REES Justice.

This is an action for damages for failure to make delivery of a telegram.

The appellee, J. A. Ramsey, was employed as a salesman at Raleigh, N. C., by Wilson & Co. He received a salary of $28.35 per week, plus a weekly expense account of $11, and had been regularly employed by the company for more than four years. He was not employed for any definite term, and Wilson & Co. had the right to discharge him at any time. On December 26, 1932, Ramsey notified his superior, G. F. Linkous, the branch manager of Wilson & Co., at Raleigh, that his wife and children, who were then in Paintsville, Ky. were ill, and asked for a leave of absence that he might visit them. Linkous granted him a leave of absence, but requested Ramsey to keep him informed as to the condition of his wife and children, and when he might expect him to return. Ramsey left Raleigh in an automobile, and arrived in Paintsville, Ky. on December 28, 1932. On January 2, 1933, Linkous addressed to Ramsey the following message on one of the Western Union Telegraph Company's standard form message blanks: "Have not heard from you presume you are not returning if do not hear by morning will figure accordingly." The message was promptly dispatched to Paintsville, but was never delivered to the appellee, J. A. Ramsey. The message was given to a messenger boy who delivered it to W. A. Ramsey, a resident of Paintsville, who failed to notify the telegraph company that the message was not intended for him. On January 6, 1933, appellee wired Mr. Linkous that he would return to Raleigh the following Monday. Upon receipt of this telegram, Linkous wrote to appellee as follows:

"I wired you the following Monday afternoon, have not heard from you presume you are not returning if do not hear by morning will figure accordingly.

"It has been circulated in Raleigh that you did not intend to return and after you had been gone for several days and I did not hear from you I naturally thought that this report was correct. I got in touch with Mr. Williams, concerning another man for the territory.

"I feel that you have shown Wilson & Co., as well as myself very little consideration by going off and not keeping us posted as to what you expected to do. However, if Mr. Williams sees fit to place you on some other territory, I will have nothing further to say in regards to same. In other words this case is left entirely up to Mr. Williams for disposal."

Ramsey failed to secure his old position or other employment with Wilson & Co., and on March 31, 1933, he brought this suit in the Pike circuit court against the Western Union Telegraph Company to recover damages which he alleged he sustained by reason of the loss of his position. Upon the trial of the case, the jury returned a verdict in favor of the plaintiff for the sum of $1,500, and from the judgment entered thereon the telegraph company appeals.

The principal grounds urged for a reversal of the judgment are: (1) The telegraph message sent by Linkous to appellee did not show on its face, nor did the telegraph company have other knowledge, that a business transaction was involved and that the appellee would suffer pecuniary loss from delay in the delivery of the message and, therefore, only nominal damages are recoverable; and (2) Wilson & Co. was not legally obligated to continue appellee in its employment for any definite or fixed period of time, and there can be no recovery of more than nominal damages.

In view of our conclusion that the judgment must be reversed on the second ground relied upon by appellant, it is unnecessary to determine whether or not the message showed on its face that it related to a business transaction and that loss would probably result unless it was promptly transmitted and delivered. For the same reason, it is unnecessary to mention or discuss other grounds for reversal presented by appellant.

It is conceded that Wilson & Co., appellee's employer, had the right to discharge him with or without cause, at any time. His employment was at the will of his employer. A contract of employment which is not definite as to time is terminable by either party at will. Clay v. Louisville & N. R. Co., 254 Ky. 271, 71 S.W.2d 617; Hardy v. Myers, 206 Ky. 562, 267 S.W. 1110; Hudson v. Cincinnati, N. O. & T. P. Ry. Co., 152 Ky. 711, 154 S.W. 47, 45 L.R.A. (N.S.) 184, Ann.Cas. 1915B, 98; Louisville & N. R. Co. v. Offutt, 99 Ky. 427, 36 S.W. 181, 18 Ky.Law Rep. 303, 59 Am.St.Rep. 467.

This rule of law is not disputed by appellee, who concedes that he could not have recovered damages from his employer if he had been discharged at any time, since his employment was not for any definite term and his employer was under no legal obligation to continue the employment. It is his contention that this case is not within the class of cases which deal with the right of an employee to recover from an employer for breach of contract of employment, and that an entirely different rule should apply to a case where the termination of employment has been caused by the tortious act of a third person, and that a fundamental distinction exists between actions in contract and actions in tort.

It may be conceded that a different measure of damages applies. The damages recoverable for breach of contract are such as are actually sustained or such as it is reasonable to conclude were within the contemplation of the parties at the time the contract was entered into. In an action in tort, the damages recoverable are such as actually flow from the wrongful act, although the particular consequences may not have been contemplated when the wrongful act was committed. Kentucky Heating Co. v. Hood, 133 Ky. 383, 118 S.W. 337, 22 L.R.A. (N.S.) 588, 134 Am.St.Rep. 457.

However to authorize a recovery of more than nominal damages, facts must exist which afford a basis for measuring the plaintiff's loss with reasonable certainty, and the evidence must be such that a jury may find the amount of his loss, not by conjecture, speculation, and surmise, but by reasonable inferences from established facts. When a person employed for a definite period loses his position through the negligent act of a third person, the damages sustained by him can be ascertained with reasonable certainty in an action against the wrongdoer. His measure of damages is the amount his employer would have been legally obligated to pay him under the contract less what he actually made or, in the exercise of reasonable diligence, could have made in other employment during the corresponding time. Where the employment is for no definite time, but is at the will of the parties, and the employee loses his...