Johnson v. Western Union Telegraph Co. ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

Per Curiam,

Affirmed.

On Suggestion oe Error.

This was an action for the alleged failure of the Wes!tern Union Telegraph Company to deliver a certain telegram addressed to appellant and delivered to the telegraph company at its office in Louisville, Ky., to be transmitted and delivered to appellant at Bay St. Louis. The declaration charges that the telegram was not delivered, although the appellant called at the Bay St. Louis office of the company and inquired about the telegram, and was informed that no telegram had been received, addressed to appellant. The declaration avers that plaintiff suffered actual damages in the way of profits on account of defendant’s failure to deliver the telegram, and also charges that the defendant company negligently, willfully, and wantonly failed to deliver the telegram, and demands punitive or exemplary damages. To this declaration a demurrer was interposed and sustained by the trial court, and plaintiff appealed to this court. On a former day of this term the judgment of the trial court sustaining this demurrer was affirmed without an opinion. This case is again before us on suggestion of error.

When the case was first presented to us, and in its consideration, our attention was specially directed to the question as to whether the declaration made out a case for actual damages, and we then thought that the several telegrams which it was alleged passed between the plaintiff and certain parties in Louisville did not make out a case of actual damages. In other words, the several telegrams did not close a contract between the sender and the prospective purchaser; but, at best, it could only be said that the plaintiff may have lost an opportunity to close a contract, if the telegram had been delivered. The several telegrams did not amount to a tender and acceptance of a proposition to sell and buy. Telegraph Co. v. Criscoe, 107 Miss. 37, 64 So. 933. We still adhere to that view.

It remains to decide whether plaintiff was entitled to exemplary damages, if the averments of his declaration are taken as true. The declaration states that the defendant wantonly and willfully refused to deliver the telegram. In many jurisdictions the courts of last resort have decided that, in the absence of actual damages, exemplar damages are not recoverable. But this court is committed to a contrary view in Steinberger v. Western Union Telegraph Co., 97 Miss. 260, 52 So. 691. The suggestion of error is therefore sustained, and the former judgment will be set aside, and the cause remanded for further proceedings.

Reversed and remanded.