DECIDED OCTOBER 4, 1945. REHEARING DENIED NOVEMBER 21, 1945.
Action for damages; from Gwinnett superior court — Judge Pratt. June 12, 1945.
Marvin A. Allison, Hope Stark, Howell, Heyman Heyman, for plaintiff in error.
R. F. Duncan, W. L. Nix, contra.
1. In an action for damages against a telegraph company for failure to deliver a telegram, allegations that other telegrams on other and remote occasions, sent to the plaintiff or members of his family, were not delivered, should have been stricken from the petition, on demurrer, there being no averments showing any relationship between the several transactions.
2. There being no allegations of fact showing wilful misconduct, malice, fraud, oppression, or entire want of care evidencing conscious indifference to consequences, allegations in the form of conclusions, on the basis of which punitive damages were sought, should have been stricken on demurrer, under both the State and Federal rule on punitive damages.
3. The addressee of a letter, in which the writer complained of the conduct of an agent of the addressee, in the absence of evidence of mutual correspondence or due course of business between the parties, cannot be held to have ratified the conduct complained of by a failure to answer the letter.
4. A failure to dismiss the agent, under the facts of this case, did not amount to a ratification of conduct authorizing punitive damages.
DECIDED OCTOBER 4, 1945. REHEARING DENIED NOVEMBER 21, 1945.
W. L. Nix brought suit against the Western Union Telegraph Company, seeking to recover nominal, statutory, and punitive damages for the non-delivery of a telegram. The petition together with its amendments alleged substantially as follows: On December 25, 1943, the plaintiff delivered to the defendant, at its office in Birmingham, Alabama, the following telegraphic message to be delivered to his wife, Mrs. W. L. Nix, in the City of Lawrenceville, Georgia: "Leave here three p. m. should arrive there late tonight." This message was delivered for transmission at about 12 o'clock noon on said date, and the plaintiff paid to the defendant in advance for transmitting it the sum of 47 cents. The plaintiff is of the information and belief that this message was actually delivered by the defendant to its agent in the City of Lawrenceville for delivery to Mrs. Nix at about 22 minutes past 12 o'clock noon on said date. The defendant's agent did not deliver the message to Mrs. Nix with impartiality, good faith, and due diligence, and the same was never delivered up to the time of the filing of this suit. There was wilful misconduct, malice, fraud, wanton oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences on the part of the defendant in its failure and refusal to deliver said message; and there were aggravated circumstances, either in the act or intention of the defendant in failing to deliver said telegram, which would justify an award of additional damages. To show such aggravated circumstances, the plaintiff alleged that upon five other occasions the defendant had failed to make prompt delivery, or to make delivery at all, of certain telegraphic messages addressed to the plaintiff or members of his family, and set forth the details of each instance. He alleged that he did not arrive at his home in Lawrenceville on December 25th, as he stated in his telegram that he would do, but arrived sometime during the day of December 26, and he then learned from his wife that said message had not been delivered. Two or three days after his arrival, since the said telegram had not been delivered, he went to the office of the defendant in the City of Lawrenceville and found that said telegram had been received by the agent of the defendant within a few minutes after it had been posted in Birmingham. The plaintiff then and there complained to the person in charge of the defendant's office in Lawrenceville of the negligent failure to deliver the telegram in question. On December 31, since the telegram was still undelivered, the plaintiff wrote a letter to the general manager of the defendant company, as follows: "On December 25, I delivered to your company in Birmingham, Alabama, a telegram to be transmitted to and delivered to my wife in the City of Lawrenceville, and paid the company at that time the charge for the same. Up to the present time this message has not been delivered, although Mrs. Nix resides in the corporate limits of the city, and it could have been delivered to her if any effort had been made to do so. I have made a personal investigation, and I have found that this message actually reached here in a few minutes after it was posted. This is not the first time your office here has acted in a most negligent manner in the delivery of its telegrams, including some of my own, and it appears to me that something should be done to correct this evil." This letter, the plaintiff alleged, properly addressed, with the correct postage affixed thereto to assure its delivery in the normal course of the mails, was posted in Lawrenceville. The defendant company never replied to this letter, and the plaintiff alleged that its failure to do so raises the presumption that it admitted the propriety of the acts and the conduct of its agent in failing to deliver the said message, and ratified and adopted its agent's said acts; and that, by reason of the facts heretofore alleged and set forth, the plaintiff is entitled to recover the sum of 47 cents actual damages, the further sum of $25 as a penalty for failure to deliver said telegram with impartiality, good faith, and due diligence; and the further sum of $2500 as punitive damages.
The defendant filed its answer and general and special demurrers, together with amendments, substantially as follows: It demurred specially to the allegation of the petition stating that "there are aggravating circumstances either in the act or intention of defendant in failing to deliver said telegram which would justify an award of additional damages," upon the ground that said allegation constituted a conclusion of the pleader, which was not supported by the facts set forth in the petition; and to the paragraph regarding the failure of the defendant on other occasions to make prompt delivery of other telegrams to the plaintiff or members of his family, as being irrelevant to the cause of action sought to be set forth, and as having no relation to the transaction upon which the plaintiff was suing; and, moreover, because this paragraph taken as a whole constituted a conclusion of the pleader. The defendant further demurred to the paragraph of the petition seeking to recover 47 cents as actual damages, because said allegation failed to set forth any actual damages recoverable against the defendant in the present action; and to the paragraph alleging that the plaintiff was entitled to recover "the further sum of $25 as a penalty for defendant's failure to deliver said telegram with impartiality, good faith," etc., for the reason that the petition showed that the message here involved was an interstate message, and the provisions of the Georgia law authorizing the recovery of a statutory penalty are not applicable to such messages; and to the paragraph alleging that the plaintiff was entitled to recover "the further sum of $2500 punitive damages," upon the following grounds: (a) There are no allegations in the petition justifying the recovery of punitive damages; (b) the message here involved was an interstate message, and the transaction was governed by the Federal law and rules, and, under such law and rules, punitive damages are not recoverable under facts and circumstances such as alleged in the petition, and would be in contravention of article I, section 8, subparagraph 3 of the constitution of the United States, conferring upon Congress the power to regulate commerce among the several States, and in contravention of the acts of Congress passed in pursuance thereof, especially the communications act of 1934; and (c) said allegation constituted a conclusion of the pleader without facts to support it. The defendant demurred further to the allegation of the petition that the defendant failed to answer the letter addressed to it by the plaintiff, and that this failure raised the presumption that it admitted the propriety of the acts and conduct of its said agent in failing to deliver said message, upon the following grounds: that this allegation was immaterial, was not a proper part of the pleadings and constituted a conclusion of the pleader without facts to support it. The defendant also demurred to the paragraph of the petition wherein it was alleged that the defendant's failure to discharge its agent for not making a delivery of said telegram, with full knowledge of the facts, constituted a ratification and condonation of the agent's acts, upon the ground that this was a conclusion of the pleader.
After a hearing, the court sustained the demurrers to the paragraphs of the petition which sought actual damages of 47 cents and $25 statutory penalty, and overruled all other demurrers. The defendant duly filed its exceptions pendente lite; the case came on for trial and resulted in a jury verdict, "We the jury find in favor of the plaintiff in the sum of $250." The defendant's amended motion for a new trial was denied and the case is brought to this court on the exceptions of the defendant to this order and upon its exceptions pendente lite.
1. In order to authorize the recovery of punitive or exemplary damages for the failure on the part of the telegraph company to deliver a telegram, it is incumbent upon the plaintiff to show that the damage grew out of "wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to the consequences." Cole v. Western Union Telegraph Co., 23 Ga. App. 479 ( 98 S.E. 407). Nowhere in the petition is there an allegation indicating upon its face, or by inference or implication, that the defendant's conduct was such as to subject it to liability for punitive damages, unless it be contended that the defendant's remissness in its delivery of telegrams to the plaintiff on five other occasions, as alleged, was indicative of such conduct. However, under the allegations of the petition in this case, this contention is untenable, as there were no circumstances alleged with reference to any one or all of these five telegrams, showing any relevancy on the question of wilfulness, malice, or conscious indifference to the consequences. The only way in which the defendant could be guilty of such conduct would be through the actions of its agent or agents, and nowhere in the petition is such conduct charged to an agent. The only allegation touching the subject is a general one against the defendant, which under the circumstances is a mere conclusion of the pleader. The petition does not allege that these five earlier telegrams, either severally or collectively, constituted a scheme or design on the part of the defendant, or its agent or agents, to wilfully, maliciously, or fraudulently oppress, injure, or harass the plaintiff, or to treat his rights or its duty to him with that want of care which would be reprehensible under the law; and, in the absence of such an allegation, taken with the fact that in connection with these five telegrams there is no allegation at all of any such conduct as to authorize the recovery of punitive damages, these five instances of alleged negligence of the defendant are irrelevant to show such conduct as would subject the defendant to punitive damages, and they would tend to confuse and prejudice the defendant's cause.
Apparently applying the Code, § 105-2002, to this case, the plaintiff set forth the defendant's failures to deliver or to make prompt delivery of these five telegrams prior to the time of its failure to deliver the telegram upon which he is suing, as aggravating circumstances. This section states: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff." It would seem that none of these five instances of negligence alleged to be aggravating circumstances could constitute aggravation of the conduct here sued on. Where an action is instituted on one particular tort, the circumstances surrounding it may show aggravation so far as it is concerned, but in the same situation several other separate and distinct prior torts cannot be said to furnish aggravation as to the one sued on, to form the basis for the recovery of punitive damages, especially when there is no allegation as to the relevancy of the separate prior torts to show intent, scheme, or design. Such allegations are calculated to mislead and prejudice the jury, if read in their hearing or commented on in the argument of the case. Lampkin v. Garwood, 122 Ga. 407 ( 50 S.E. 171); Simmons v. Simmons, 32 Ga. App. 69 ( 122 S.E. 644), and cases cited. It follows, therefore, that the court erred in overruling the special demurrers to these allegations.
2. Whether this transaction be governed by the Federal rule or the Georgia rule, the defendant's special demurrer to the allegation seeking punitive damages was good, and the court erred in overruling it. While the plaintiff alleged that the defendant's failure to deliver the telegram was the result of wilful misconduct, malice, fraud, or oppression, or such entire want of care as to raise the presumption of conscious indifference to the consequences, the petition contained no facts to support this conclusion. At most, the petition showed only that the defendant was guilty of gross negligence, and neither the Federal nor the Georgia rule will hold a telegraph company liable for punitive damages for gross negligence in making a delivery of telegrams. Cole v. Western Union Telegraph Co., supra; Lake Shore Michigan Southern Railway Co. v. Prentice, 147 U.S. 101 ( 13 Sup. Ct. 261, 37 L. ed. 97); Western Union Telegraph Co. v. Speight, 254 U.S. 17 ( 41 Sup. Ct. 11, 65 L.ed. 104), and cases cited.
3. It was alleged that a properly addressed letter with the correct postage was mailed to the defendant, which it was stated raised the presumption that such letter was duly received in the normal course of the mails; and alleged that the plaintiff never received a reply to this letter, which it was stated raised the presumption that the defendant, by not making any reply, ratified the failure of its agent to deliver the telegram. The plaintiff's letter, however, contained no charges that the agent was guilty of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Hence, if the defendant's failure to reply to the letter constituted a ratification of the agent's acts — and we are not of the opinion that it does — the defendant ratified nothing which would subject it to liability for punitive damages. The letter in question did no more than to state that the defendant's agent on several occasions had failed to deliver telegrams promptly in the City of Lawrenceville. While the plaintiff's allegation as to the failure of a party to answer a letter constituting a ratification of the statements therein contained may state the correct principle of law generally, as applied in some jurisdictions, this principle is applicable to those cases where two parties have carried on a mutual correspondence in reference to a particular matter, and one of the parties has written a letter to the other making statements concerning a subject of which the latter has knowledge, and which the latter would naturally deny if not true. However, a failure to reply to statements made in a letter, which is not a part of a mutual correspondence is not considered an implied admission by the addressee of the truth of the statements. 20 Am. Jur. § 568; 8 A.L.R. 1163; 34 A.L.R. 560; 55 A.L.R. 460. The plaintiff's letter was not a part of a mutual correspondence; thus this general rule of the law of ratification is inapplicable in this case. Moreover, the Code, § 38-120, states: "In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from the other to answer within a reasonable time. Other he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent, and to adopt them." There is no allegation of such a "due course of business" as to warrant the application of this section of the Code, even if it be assumed that the statements in the unanswered letter refer to acts of the addressee and not solely to those of the writer of the letter. McLendon v. Wilson, 52 Ga. 42; Bray v. Gunn, 53 Ga. 145. It follows then that there would be no ratification by the defendant of the agent's wilful misconduct, malice, fraud, wantonness, or oppression, or such entire want of care as would raise a presumption of conscious indifference to the consequences of his failure to deliver the telegram; and the court erred in not sustaining the defendant's special demurrer to this allegation.
4. What is said above in division 2 applies to the averment that the defendant's failure to dismiss its agent would constitute a ratification of the agent's acts; and the court erred in not sustaining the special demurrer to this allegation.
The court erred in overruling the demurrers as above shown. Further proceedings were nugatory.
Judgment reversed. Sutton, P. J., and Parker, J., concur.