Opinion
No. 32592.
February 15, 1937.
1. TELEGRAPHS AND TELEPHONES.
Where telephone company cut out subscriber's telephone for failure to pay bill contracted by former tenant in building, and prospective purchaser of subscriber's business telephoned to inform subscriber that he would purchase business, and was told that telephone had been disconnected, and he then decided that he would not buy if business was insufficient to pay for telephone, telephone company held not liable to subscriber for special damages for loss of such sale.
2. TELEGRAPHS AND TELEPHONES.
In action against telephone company for wrongfully disconnecting subscriber's telephone, where there was testimony that company had wrongfully disconnected telephone and by reason thereof subscriber lost sale of property and that business was largely conducted by telephone, whether subscriber was entitled to compensatory damages held for jury.
3. TELEGRAPHS AND TELEPHONES.
In action against telephone company for wrongfully disconnecting subscriber's telephone, excluding testimony of loss of sale of subscriber's business which was occasioned by disconnecting telephone held error since it should have been submitted to jury for a finding of damages for inconvenience, annoyance, and loss of business occasioned by wrongful deprivation of telephone service.
4. TELEGRAPHS AND TELEPHONES.
In action against telephone company for wrongfully disconnecting subscriber's telephone where subscriber had shown actual damage, evidence of rude and insulting language of manager of local telephone company at time of disconnecting telephone held for jury on question of whether company was liable for punitive damages.
ON SUGGESTION OF ERROR. (Division B. March 29, 1937.) [173 So. 430. No. 32592.]1. DAMAGES.
Inconvenience as an element of damage need not be specifically alleged as such, it being sufficient to allege facts constituting right of action from which damages flow.
2. TELEGRAPHS AND TELEPHONES.
Company operating a utility may be subject to restraints different from a purely private business.
3. TELEGRAPHS AND TELEPHONES.
In action against telephone company for wrongfully disconnecting subscriber's telephone which was essential in conduct of subscriber's dry cleaning business, amount of subscriber's actual damages and whether telephone company knowingly and willfully removed telephone so as to entitle subscriber to punitive damages held for jury.
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, Judge.
G.E. Williams, of Clarksdale, and Everett, Forman Everett, of Indianola, for appellant.
A telephone company cannot refuse to serve one who offers to pay its rates and comply with its rental rules and regulations, for the purpose of coercing payment of a debt contracted for service rendered in the past.
26 R.C.L. 544.
Neither has the telephone company a right to cut off both of the plaintiff's telephones, that in her residence and that in her place of business, even though she be in default of rentals on one of such phones.
Telephone Co. v. Hobart, 89 Miss. 259.
According to the whole proof in this case the plaintiff did not owe the Telephone Company a penny for its service, and it had no right or authority under the law to cut it off.
Telephone Co. v. Hobart, 89 Miss. 259.
The question of the statute of frauds is settled against the appellee's contention in the case of Alexander v. Western Union Tel. Co., 66 Miss. 161.
Mrs. Critz owned a piece of property that actually cost her $2300; she had a purchaser for it at $4500, or a profit of $2200, and she was deprived of that profit by the negligence of the telephone company and its wilful disregard of her rights by wilfully and deliberately cutting off her telephone service when she did not owe them a dime.
Western Union Tel. Co. v. Allen, 66 Miss. 549.
The case at bar, in our humble opinion, is stronger against the defendant than the Allen case, supra, in that Mrs. Critz had a contract with the telephone company for which she was paying to connect all calls for her over its lines with her telephone, and it wilfully and deliberately violated its contract with her and cut her off without reason so that contact could not be made, and according to the undisputed proof advised the caller that her telephone had been disconnected for her failure to pay her telephone bill.
Even though the telephone company might not be liable in contract to Mrs. Critz as the sendee of the message, it is liable to her in tort.
Singleur Co. v. Western Union Tel. Co., 72 Miss. 1030; 26 R.C.L. 88, par. 586; Cumberland Tel. Tel. Co. v. Hendon, 114 Ky. 501, 71 S.W. 435; Vinson v. Southern Bell Tel. Tel. Co., 66 So. 100.
Unquestionably, according to the authorities, the plaintiff was entitled to recover, or at least to have submitted to the jury, her right to recover the damages claimed by her.
The general rule is that punitive damages are not recovered for the breach of a contract unless the breach is attended by some intentional wrong, insult, abuse or gross negligence, which amounts to an independent tort.
American Ry. Express Co. v. Bailey, 107 So. 761; 8 R.C.L. 605; 17 C.J. 976; Hood v. Moffett, 109 Miss. 757.
We do not believe that the language used towards the plaintiff by the manager of the telephone company when he said: "Hell, I am cutting you off because you haven't paid your bill. Damn it, I am cutting your residence off, too, and I am cutting you off right now," can be held when used towards a lady who has her place in the business world and against whom the defendant charges nothing, and whose honesty, integrity and morality is unquestioned, can be held not to be insulting, abusive and in utter disregard of her rights. This language was used to the plaintiff, and it was in and about the business of the telephone company, and unless this court should hold it to be perfectly proper language to use towards the customers of the defendant, then she was entitled to have the questions of punitive damages, under proper instructions, submitted to the jury.
Edward W. Smith, of Clarksdale, for appellee.
This is a claim for special damage. On the trial of the case, other than punitive damages, this was the only damage claimed. Not only did appellant specifically abandon any other claim for damages other than punitive damages, but she wholly failed to introduce any evidence to sustain any other element of damage.
There is no testimony showing that the telephone was actually cut off; when it was cut off; how long it remained cut off; when, if at all, it was re-established; whether or not she lost any business by reason thereof; in fact, other than the alleged failure to consummate a sale of her business to McLeary, no testimony as to damages was offered by the appellant.
The declaration does not allege, and there is no evidence in the record that appellee was advised or knew or had any means of knowledge that appellant contemplated a sale of her business to McLeary, or anyone else. In the absence of such a statement in the declaration the special damages are not recoverable. In the absence of such an allegation, evidence thereof would have been incompetent. No such evidence was offered.
26 R.C.L. 602; 62 C.J. 278, 291, 293; Western Union Tel. Co. v. Pearce, 82 Miss. 487; Western Union Tel. Co. v. Clifton and Eckford, 68 Miss. 307; Jacobs v. Postal Tel. Co., 76 Miss. 278; Bess v. Citizens' Tel. Co., 315 Mo. 1056, 287 S.W. 466.
The appellant has another difficulty. Had McLeary been properly and promptly connected with appellant, he would have advised appellant that he was ready, willing and able to purchase her business of Spotless Dry Cleaners and pay her therefor the sum of $2500 in cash, and the balance of $2000 to be paid by him at the rate of $75 per month. Had this conversation occurred a valid contract would not have been entered into.
Section 3347 of the Code of 1930.
If it should be considered a completed offer and acceptance, the statute condemns the purported contract, not in writing, or partly performed, according to the provisions of the statute, and such a contract is void.
Daniel v. Frazier, 40 Miss. 507; Entrekin v. Byrd, 149 Miss. 340, 115 So. 562.
A failure to deliver a telegram which if delivered would not have constituted a contract, will not entitle the sendee to damages for failing to make such contract.
Postal Tel. Co. v. Criscoe, 107 Miss. 37; Western Union Tel. Co. v. Patty Dry Goods Co., 96 Miss. 781, 51 So. 913.
Waiving aside the invalidity of the contract as such, nevertheless, the proposed conversation was purely for the purpose of advising the appellant that he was able, willing and ready to buy the plant upon her terms. Much was to be done. In order that the contract should be valid, a writing under the statutes of frauds was necessary.
A telegraph company failing to deliver a message giving the sendee an opportunity to make a contract is not liable for the profits which he might have made had the message been seasonably delivered and the contract made and performed. Such damages are too remote and speculative.
Western Union Tel. Co. v. Adams Machine Co., 92 Miss. 849, 47 So. 412; Johnson v. Western Union Tel. Co., 79 Miss. 58; Forgey v. Macon Tel. Co., 19 A.L.R. 1413, and note, page 1419; Barrett v. New England Tel. Co., 23 A.L.R. 947, and note, page 952; Western Union Tel. Co. v. Webb and Smith, 48 So. 408.
Argumentatively conceding the facts and law warrant the recovery of special damages and that an enforceable contract would have been entered into, yet appellant failed to establish by competent evidence the quantum of her damage; certainly not to the extent to preclude speculation as to the amount thereof.
Western Union Tel. Co. v. Pallotta, 81 Miss. 216; Howard v. Stilwell Bierce Mfg. Co., 139 U.S. 199, 35 L.Ed. 147; Western Union Tel. Co. v. Hall, 124 U.S. 444, 31 L.Ed. 479; Western Union Tel. Co. v. Lewis, 203 Fed. 832; Cahn v. Western Union Tel. Co., 48 Fed. 810.
It was conceded by the appellant in the lower court that if no actual damages were shown, she would be entitled to no punitive damages.
It is well settled that in all cases where punitive damages are predicated on actual damages, if no actual damages are allowed, punitive damages are not recoverable, so it is unnecessary for us to discuss this proposition.
McCain v. Cochran, 153 Miss. 237.
Appellee took the position that it could not be made to respond in damages for the failure of appellant to sell her business, nor for punitive damages. The court sustaining this position, and the appellant conceding no other questions were involved, appellant elected to rest her case. There was nothing for the court to do but grant a directed verdict in favor of appellee.
American Ry. Express Co. v. Bailey, 107 So. 761; Cumberland Tel. Co. v. Allen, 42 So. 666, 89 Miss. 833; Postal Tel. Co. v. Eubanks, 121 Miss. 530.
To award punitive damages under any situation because an agent or an employee should forsooth use the word "hell" or "damn" would indeed lead to disaster. It is common knowledge that such expressions are not used with the intention of hurt or harm, and it is common knowledge that as a matter of fact such expressions neither hurt nor harm, injure nor damage. No intent to harm or injure could be implied from the use of such words. They are commonly used in the business world and among the ordinary man to denote emphasis and accent. The most that could be condemned in the use of such language would be the impropriety of its use.
The statement of the manager upon which reliance for punitive damages is based, instead of evincing a wanton and wilful disregard of the right of appellant, conclusively shows that he intended to disconnect her telephone service "because she had failed to pay her bills."
Appellant, Mrs. W.H. Critz, owned a pressing and cleaning establishment in Clarksdale, which she leased to one B. Harrison, who operated it for a period, during which he incurred a telephone bill amounting to $23.65, plus $3.47 tolls, and then surrendered said lease and moved from the building. Appellant then took the business over, and, according to her testimony, she was presented, by the telephone company, with Harrison's bill, and she told them she did not owe this bill, that it had been incurred by Harrison; that she was not responsible therefor; and that the local manager at Clarksdale stated it was his error and he should have collected from Harrison, but did not charge off the account. She paid the current charges and the telephone was continued for a period, but this bill was constantly rendered with her monthly statements. Her testimony shows that she desired to sell the business, and contacted a prospective buyer through her brother-in-law; that she went to Memphis and discussed the terms of such sale with the prospective buyer, and proposed to sell for the sum of $4,500, with $2,500 cash and the balance in monthly installments of $75 each, and after she returned to Clarksdale this prosepective buyer desired to inform her by telephone of his conclusion to accept the proposition to sell, but was told by the telephone operator that the appellant's telephone had been disconnected, and he decided that if the business was such that she could not pay her bills, he did not care to invest in it. He did not notify her of his purpose for the reason that he had been informed that her telephone had been cut off for nonpayment of her bills.
The appellant's testimony showed that when her telephone was cut off, she called the manager to know why, and that the manager said, "Hell, because you have not paid your bills. Damn it, I am cutting you off right now. I am cutting off your residence too." She further testified that two-thirds of her business was conducted over the telephone, and that it was absolutely necessary for her to have one to successfully conduct her business; that she offered to pay her telephone bill, but the company refused to receive it and to give her service unless she paid the Harrison bill.
It was alleged in the declaration that the appellant was damaged in the amount of $1,000, because of the humiliation and embarrassment she suffered, and loss in her business, and, in addition thereto, and because of the wrongful acts on the part of the appellee the appellant lost a sale, and suffered damage on account thereof in the sum of $2,200. Appellant also demanded punitive damages because of the removal of her telephone and the deprivation of its service, which she contends was intentional wrong, and also because of the rude, insulting conversation of the local manager at Clarksdale. She offered a deposition of one George O. McLeary, who testified therein to the above-stated facts, that he would have purchased the business had he not concluded, because of the cutting off of appellant's telephone, that the business did not pay, and that he was ready, able, and willing to buy when he learned this, but this deposition was by the court excluded. There was no proof that the appellee had any knowledge of an agreement between McLeary and the appellant for the sale of the business. The court also ruled out her statement in reference thereto, on the ground that such evidence, as an element of damage, is not admissible, such damages being not recoverable, and thereupon, counsel made the following agreement:
"It is agreed by Counsel for the plaintiff and counsel for the defendant that the gist of the testimony to be offered by the plaintiff with reference to punitive damages be stated, and that the court then pass on the question as to whether or not the defendant would be liable for punitive damages, the testimony with reference to all the actual damages being claimed having been excluded." The record then states that on January 6, 1936, the local manager of the telephone company, J.M. Hurt, called appellant over her telephone and proceeded to notify her that said telephone was being disconnected, and in answer to appellant's inquiry as to why this was being done, answered in the rude and insulting manner set forth supra.
The court then granted a peremptory instruction for the appellee, the telephone company, from which this appeal is prosecuted.
The agreement between counsel quoted supra is not entirely clear as to just what was excluded. It seems to have been the idea of the court below that the testimony did not support a cause of action for actual damages. It is true that the claim, as to the loss of a sale as special damages, was not recoverable as an item of damages, but the fact was admissible that the appellee had wrongfully disconnected appellant's telephone, and by reason thereof she lost a sale of her property; that her business was largely conducted by the telephone; and that this disconnection of her telephone constituted an injury to appellant for which she was entitled to compensatory damages of which the jury, under the facts of this case, were to be the judges, under the doctrine announced in the case of Cumberland Telegraph Telephone Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 Am. St. Rep. 702. In this case, the telephone company wrongfully cut out a subscriber's telephone, and refused to reinstate it, and the court held that the company was liable, not only for actual damages, but also for the inconvenience and annoyance occasioned by the subscriber being deprived of the use of the telephone, and that a verdict for $150 was not excessive. In this case the bill was due by another. In the case at bar, according to the testimony of the appellant which is not disputed, the bill was due by Harrison; the appellant so notified the appellee, and its manager admitted to her that it was his error and that he should have collected from Harrison.
Under the facts of this record, and under the doctrine announced in the case mentioned supra, it was error for the court to exclude the appellant's evidence. It should have been submitted to a jury for a finding of damages for the inconvenience, annoyance, and loss of business occasioned by the wrongful deprivation of telephone service. See Alexander v. Western Union Tel. Co., 66 Miss. 161, 5 So. 397, 3 L.R.A. 71, 14 Am. St. Rep. 556, and Western Union Tel. Co. v. Allen, 66 Miss. 549, 6 So. 461.
The appellant, by her evidence, having shown actual damages, it was a question for the jury, under all the circumstances considered in connection with the rude and insulting language used by the manager of the local telephone company, to say whether the company was liable for punitive damages.
Therefore, the judgment of the court below will be reversed and the cause remanded for a new trial.
Reversed and remanded.
It is here contended that there was neither allegation nor proof of damages for inconvenience, and that it was error to reverse the cause and remand it for another trial for the recovery of actual damages and the submission of the question of punitive damages.
In the declaration it was alleged that the plaintiff was engaged in the dry cleaning business, which was conducted by telephone almost exclusively; that she had paid the monthly rental for such telephone service and was not indebted to appellee. That under these circumstances, it was the duty of appellee to continue such service, but that, in disregard of its duty, knowing that the discontinuance of said service would result in ruin to her business, the said appellee disconnected said telephone, and that because thereof, she suffered damage in the sum of $1,000 and suffered further damage in the sum of $2,200 by reason of the fact that she was unable to consummate a sale of her said business.
The appellant's own version, according to her testimony, is as follows: "Q. Now tell the jury and the court whether, in the operation of a business of that character, a telephone is not necessary? A. Well, (a) telephone is very necessary in my business, because we have to contact with our customers over the telephone, and they have to call us to send our truck out for clothes to clean. We depend on our telephone, in fact, two-thirds of our business is over the telephone. We have to depend on it for our business. Without a telephone, we could not do any business at all, but a very little bit, people coming by and giving us their business."
Inconvenience, as an element of damage, does not have to be specifically alleged as such. It is sufficient to allege the facts constituting the right of action from which the damages flow. "The legal consequences flow from the facts, and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. That is every day practice." Aetna Life Ins. Co. v. Haworth, 57 S.Ct. 461, 81 L.Ed. ___.
The telephone business is affected with a public use, and it has become so extensive and general that it is a vital necessity. A company operating a utility may be subject to restraints different from a purely private business.
Under the facts of this case, on a new trial, the plaintiff, appellant here, would certainly be entitled to actual damages, which includes inconveniences, and it is not necessary to prove specifically the monetary value of such damages, as the jury, from the facts, constitutes an instrumentality for finding the value of damages for the violation of rights, and for the inconvenience suffered from the wrongful deprivation of telephone service by the appellant. If the jury finds that the Telephone Company knowingly and willfully removed the telephone of plaintiff, and that such conduct was oppressive and insulting, they could also find punitive damages.
The suggestion of error will, therefore, be overruled.