Western Union Telegraph Co. v. Miller

Smith, L,

delivered the opinion of the court.

Appellee instituted suit in the court below to recover from appellant punitive damages for delay in the delivery of two telegrams, alleged to have been occasioned by the wilful and wanton negligence of appellant. No actual damages were claimed. From the judgment awarding the sum of $1,000, this appeal is taken.

On the 30th day of September, 1907, appellee was living in Newton, Miss., and her mother was residing in Somerset,'Ey., with Luther R. Bobinson, her son and appellee’s brother. On the morning of said day Bobinson delivered the following telegram to appellant’s agent at Somerset for transmission to appellee: “Mother is very sick. She wants you to come. Wire me when you start.” Mrs. Bobinson died about 3 o’clock the next morning, and about 9 o’clock a. m. of that day, October 1st, Bobinson delivered- another telegram to appellant’s agent for transmission to appellee; the same being as follows: “Mama is dead. Come. Wire immediately.” At this time, and for some time prior thereto and thereafter, there was a general 'strike on among appellant’s employes, and it was having great difficulty in conducting its business. Bobinson knew of this fact, but states that the operator, advised him that he thought he would be able to get the message through. There are several relay stations between Somerset and Newton, one of which is *229 J aekson, Miss. The first telegram was received at J aekson, Miss., at 4 o’clock p. m., September 30tb, and tbe second at 12:53 o’clock p. m., October 1st. At this time, on account of tbe strike among tbe telegraph operators, most of the work of receiving and transmitting messages at Jackson was being done by the manager of that office, and these two messages were handled by him. On account of interference with its wires by its operators who were on strike, and by others not on strike but in sympathy therewith, the company had practically abandoned any attempt to use its wires on the Alabama & Vicksburg Railway, on which Newton was situated, and was then forwarding its messages by mail. No attempt seems to have been made to forward these messages by wire, the testimony of appellant’s manager relative thereto being as follows: “Before that I had tried so often on the Alabama & Vicksburg, and was disturbed so, and there was such language used, I gave it up altogether. The commercial wire stood open nearly every minute from the beginning of the strike until it closed. I tried on several occasions to see where the trouble was, and as fast as I would get it straightened out between two or three stations, and get the wire in good condition, the wire would be opened somewhere else on the line, and finally I gave it up as a bad job and quit trying. As to the railroad wires, the moment we broke in and signed our office call, the railroad operators recognized that we were the commercial office, and would start to interfering with the circuit, so the outcome of it was we could do nothing.” Appellant sometimes used the wires of the railroad company in transmitting its messages. Upon receipt of these messages, one copy thereof was mailed to appellee, and one copy was mailed to appellant’s agent at Newton. It does not appear from the evidence when these messages were deposited in the mail; but the first one was received by appellant at 8 o’clock on the morning of October 1st, and the second at 11 o’clock on the morning of October 2d; *230 appellant’s agent at Newton in each instance telephoning' her the contents of his message before she obtained hers from the post office. When she received the last message, it was too late for her to attend her mother’s funeral.

At the close of the evidence a peremptory instruction was requested by appellant, and refused. This instruction ought to have been given. 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 as is equivalent thereto. A wrongful act, to which punitive damages are applicable, must not only be done with a knowledge of its wrongfulhess, but must be characterized by one or more of the above elements. Railroad v. Marlett, 78 Miss. 872 , 29 South. 62 ; Cocke v. Telegraph Co., 84 Miss. 380 , 36 South. 392 . The delay in delivery was caused by the strike then on among the employes of appellant, and these telegrams were handled in the same manner that all other business of this character was then being necessarily handled by the appellant, including the mailing of the telegrams at Jackson.

It is said that the appellant could have telephoned the messages over the long-distance telephone, and that, if sent by mail, a special delivery stamp should have been placed on the envelope containing same. Granting that appellant was negligent in not using one or the other of these means in forwarding the telegrams, as to which we express no opinion, negligence alone, as hereinbefore stated, will not warrant the imposition of punitive damages. As was said by this court in Telephone Co. v. Baker, 85 Miss. 492 , 37 South. 1013 : “Every legal wrong entitles the party injured to recover damages sufficient to compensate for the injury inflicted, but not every legal wrong entitles the injured party- to recover exemplary damages. Punitive damages are *231 allowed, not solely nor chiefly for the benefit of the particular individual injured, but are awarded on the well-established principle of law that they may have a deterrent effect and protect the general public against a repetition of similar offenses.”

Reversed and remanded.