Western Union Telegraph Co. v. Garrett

• Decision Date: 29 May 1916
• Docket Number: 6424.
• Parties: WESTERN UNION TELEGRAPH CO. v. GARRETT.
• Court: Oklahoma Supreme Court

158 P. 619

59 Okla. 50, 1916 OK 592

WESTERN UNION TELEGRAPH CO. v. GARRETT.

No. 6424.

Supreme Court of Oklahoma

May 29, 1916

Syllabus by the Court.

G. sent a telegram from M. to his brother at C. notifying him of the serious illness of his brother at M. December 19, 1910, which was not delivered until called for January 7, 1911, long after his brother's death, and no excuse offered for failure to deliver. Defendant's agent at C. was well acquainted with plaintiff, to whom the telegram was sent seeing him two or three times every day. Held, defendant was guilty of gross negligence amounting to a wanton and reckless disregard of plaintiff's rights.

It is error to admit testimony showing defendant's agent at C was in the habit of getting drunk, or was drinking at or about the time the telegram was sent, without showing that his drinking was the proximate cause of the loss and damage of which complaint is made, or had anything to do with the failure to deliver the telegram.

Where plaintiff does not recover actual damages in an action for delay in delivering a death message, a verdict for exemplary damages alone should, upon proper application to the court be set aside.

Commissioners' Opinion, Division No. 5. Error from District Court, Hughes County; John Carothers, Judge.

Action by R. E. Garrett against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

R. J. Roberts, C. O. Blake, and W. H. Moore, all of El Reno, J. G. Gamble, of Des Moines, Iowa, K. W. Shartel, of Oklahoma City, and Crump & Skinner, of Holdenville, for plaintiff in error.

W. T. Anglin and Warren & Miller, all of Holdenville, for defendant in error.

CLAY C.

For convenience the parties hereto will be referred to as plaintiff and defendant, as they appeared in the trial court. This suit was instituted in the district court of Hughes county, Okl., by the plaintiff, R. E. Garrett, against the defendant, the Western Union Telegraph Company, for failure of said defendant to deliver to him a telegram sent to him by his brother on the 19th day of December, 1910, from Monroe, Okl., to Calvin, Okl., which read as follows:

"Monroe, Oklahoma.

To R. E. Garrett, Calvin, Okla.

Your brother Huston bad sick; come on first train.

John Garrett."

Plaintiff sues for actual damages in the sum of $3.25 and for exemplary damages in the sum of $1,500 for alleged gross negligence on the part of the defendant in wholly failing to deliver or make any effort to deliver said telegram. Defendant answered by general denial. Trial was had to a jury, and a verdict for plaintiff in the sum of $500, upon which judgment was entered, and from this judgment defendant appeals to this court for a review of alleged errors. Defendant presents its argument upon two specifications of error, viz.: (1) Motion for instructed verdict should have been sustained; (2) admission of incompetent evidence.

1. Treating the action as one sounding in tort, and we may say every presumption must be indulged in favor of the petition to construe it as such, then did the facts warrant a recovery? The uncontradicted evidence shows that John Garrett sent plaintiff a death message to Calvin, Okl., where plaintiff lived, and that plaintiff, in carrying on his business, that of a drayman, was in the office of defendant two or three times a day. The telegram was sent from Monroe, Okl., to Calvin, Okl., on the 19th day of December, 1910, and was never delivered until plaintiff called at defendant's office on the 7th day of January, 1911, when he was given a copy of the telegram. Plaintiff paid 25 cents for sending the telegram. His brother died on the 21st day of December, 1910. Some other evidence, with reference to the drunkenness of the defendant's agent at Calvin at or about the time of sending the telegram was introduced, and some evidence of words between plaintiff and said agent some time prior to this time, which we think should have been excluded and to which we will refer later.

Actual damages having been proven in the sum of 25 cents, we think the court properly overruled defendant's motion for an instructed verdict. No effort was made to deliver this telegram, and no excuse offered for defendant's failure to deliver, and defendant offered no evidence.

Taking into consideration the intimate acquaintance of defendant's agent with plaintiff, that he was in the office two or three times a day, and no mention ever made of this telegram or explanation offered for a failure to deliver, we think the weight of authority authorized the court and jury to conclude that defendant was guilty of gross negligence amounting to a wanton disregard of the rights of plaintiff.

In the case of W. U. T. Co. v. Reeves, 34 Okl. 468, 473, 126 P. 216, Mr. Justice Sharp, in discussing the question of exemplary damages, says:

"It would seem to follow that a recovery for exemplary damages can only be had in case of wantonness, willfulness, recklessness, or malice, or where the negligence is so gross as to amount to wantonness or willfulness, and that, where the carrier's breach of duty is the result of mere mistake, or of simple as distinguished from gross negligence, and where there has been an honest effort to perform its duty, no recovery for other than actual damages can be sustained." 37 Cyc. 1793; W. U. T. Co. v. Crowley, 158 Ala. 583, 48 So. 381.

In the latter case it is held defendant was so grossly negligent as to evince an utter disregard of the feelings and rights of plaintiff.

In W. U. T. Co. v. Seed, 115 Ala. 670, 22 So. 474, and W. U. T. Co. v. Gilstrap, 77 Kan. 191, 94 P. 122, it was held that failure to deliver a telegram was negligence so gross as to show wanton and reckless disregard of the rights of plaintiff.

In W. U. T. Co. v. Lawson, 66 Kan. 660, 72 P. 283, in passing on the question of damages, the court says: "The only remaining question, and in reality the only * * * one in this case, is: Was there substantiated evidence in the case from which the jury could say * * * plaintiff was entitled to exemplary damages? The rule is too well settled in this state to admit of modification or change that in all actions to recover damages for negligence, where actual damages are recoverable, the plaintiff is entitled to recover exemplary damages if the negligence is so gross as to amount to wantonness. Wiley v. Keokuk, 6 Kan. 94; Leavensworth L. & G. R. Co. v. Rice, 10 Kan. 426; K. P. Ry. Co. v. Kessler, 18 Kan. 523; S. K. Ry. Co. v. Rice, 38 Kan. 404 [16 P. 817, 5 Am. St. Rep. 766]; West v. Telegraph Co., 39 Kan. 93 [17 P. 807, 7 Am. St. Rep. 530]; A., T. & S. F. R. Co. v. Stewart, 55 Kan. 667 ."

The term "wantonness," as here used, does not necessarily mean malice, but a reckless disregard of the rights of others.

In Telegraph Co. v. Lawson, supra, the court held:

"The evidence fairly tends to support the verdict of the jury in this case. The carelessness of the messenger boy in charge of this telegram, knowing as he did, that it was either a death message or some one was sick, cannot be excused or palliated, nor * * * reconciled with that degree of care required under such circumstances. * * * Had this messenger boy employed the most easily accessible agencies, he would have found Newby. His neglect to do this exhibits a reckless disregard of the rights

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