Cumberland Telephone & Telegraph Co. v. Allen

42 So. 666, 89 Miss. 832

• Court: Mississippi Supreme Court
• Decided: November 15, 1906
• Status: Published

Opinion

Mayes, J.,

delivered the opinion of the court.

The testimony in this case did not warrant the court in giving the second instruction for appellee, in which the jury are told that they might assess puuitive damages. There is nothing which shows willfulness, oppression, or willful disregard of the rights of appellee, or any other willful wrong. In the case of Vicksburg, etc., Co. v. Marlett, 78 Miss., 873 (s.c., 29 South. Rep., 62), the court has said: “Punitive damages may be recovered only in cases where the acts complained of are characterized by malice, fraud, oppression, or willful wrong, evincing a disregard of the rights of others. There must be some element of one or more of the qualities or properties named, relating to the acts made the ground of action, before exemplary damages may be inflicted.” The testimony in this case utterly fails to establish any element in the conduct of appellant, tested by the above rule, which would warrant the imposition of exemplary damages, and the instruction given by the court on this line was erroneous. This authority is repeated in .the case of Telegraph Co. v. Spratley, 84 Miss., 86 (s.c., 36 South. Rep., 188), and in the case of Telephone Co. v. Baker, 85 Miss., 486 (s.c., 37 South. Rep., 1012).

The testimony, undoubtedly shows that appellant was somewhat careless in not seeing to it that the call was delivered to Burton; but it is equally certain that there was no willful or intentional wrong intended. The measure of damages in this case is actual damage sustained by appellee, and the court erred in refusing to instruct the jury that appellee could only recover his actual damage.

For these reasons the case is,,reversed and remanded.