Western Union Telegraph Co. v. Bodkin

The opinion of the court was delivered by Benson, J.: The' defendant alleges error in three particulars: (1) In overruling a demurrer for misjoinder of causes of action, (2) in giving instructions to the jury, and (3) in denying its motion to disallow the exemplary damages. The last proposition was again presented in the motion for a new trial. There was no misjoinder, for only one cause of action was stated (Bliss, Code PL, 3d ed., § 14), and in such an action both, actual and exemplary damages may be recovered if the evidence justifies such recovery. (West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530.) The criticism of the instructions is based upon the alleged insufficiency of single propositions considered apart from the remainder of the charge. When every part is considered in its proper relation to the whole charge, however, the instructions appear fairly and clearly to state the law of the case. (The State v. McCoy, 70 Kan. 672, 79 Pac. 156.) That exemplary damages may be allowed in such a case, when there is actual damage and the negligence is so gross as to amount to wantonness, was declared to be settled in this state in Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283. The rule was again applied and followed in Telegraph Co. v. Gilstrap, 77 Kan. 191, 94 Pac. 122. The jury in a special finding stated that they .allowed $599.42 for exemplary, or1 punitive, damages [795] for receiving and not transmitting the message. The following question was asked and answer given: “Ques. If you find defendant negligent, do you find from the evidence that such negligence amounted to a reckless disregard of the rights of others? Ans. Yes.’,’ It is insisted that in “reckless disregard of the rights of others” is not a sufficient warrant for punitive damages. The expression was probably taken from the opinion in the Lawson case, but its import in these findings must be considered in connection with the instructions relating to the allowance of exemplary damages, wherein the jury were told: “If you find and believe from the admitted facts and the fair weight of the evidence herein the plaintiff sustained actual damages in any sum, and you further find and believe that such damage was caused by the negligence of defendant, its servants, agents or employees, and that such negligence was so gross as to amount to wantonness, or that the misconduct of defendant’s agent or employee was so gross as to import an intention on his part to inflict a wrong upon the •sender, or if there was such reckless disregard of the plain duty of defendant’s agent or employee as to be equivalent to a wilful wrong, then you should allow plaintiff what is known to the law as exemplary damages.” Whatever criticism might be indulged in concerning the phrase “reckless disregard of the rights of others,” standing alone, the additional words, “equivalent to a wilful wrong,” make the meaning perfectly clear; and this must be the sense in which the jury understood them. It is urged, however, that the evidence does not show such conduct as to justify the allowance of any exemplary damages. The jury found that the message had been delivered and its transmission paid for. The contents disclosed its importance. Should the jury infer a mere inadvertence or mistake in mislaying or destroying it, or could they presume from the importance of the business in which the defendant was engaged and [796] the careful system by which such business, was ordinarily transacted, as shown by the evidence, that such a mistake was so unlikely as to warrant the inference that the default was caused by negligence so great as to amount to wantonness or recklessness equivalent to a wilful wrong? The mere statement of the question suggests that the field of inquiry is for the jury. The failure to send the message was not accounted for except by the denial of the defendant’s agents that they had received it; but, the fact that they did receive it being established, the reason for failing to transmit became a matter of inference for the jury from the facts proved. Finally, it is contended that the damages allowed are excessive. This claim has been carefully. considered and appears to be well founded. The only actual loss suffered was the amount paid for the toll. There was but little delay at the station in Denison, and no postponement of the funeral or interference with the attendance of relatives. No distressing consequences or other injuries were shown. The agent at Denison, having promptly delivered the other messages, was watching for the missing telegram. The reason for not sending it is entirely a matter of inference from the fact that it was delivered with charges prepaid for that purpose. Although the jury in their discretion wer& warranted in finding grounds for exemplary damages, the amount should have been fairly graduated to the degree of culpability justly to be inferred and to the resulting consequences. The award of exemplary damages should be measured according to the circumstances of aggravation or mitigation, and made reasonable in view of the conduct of the wrong-doer in the particular case. The amount should not be so small as to be trifling, nor so large as to be unjust, but such as candid and dispassionate minds can approve as a punitive example to warn against similar lapses from duty. The decision in Telegraph Co. v. Gilstrap, 77 Kan. [797] 191, 94 Pac. 122, is cited as a precedent for sustaining the recovery here. In that case it was shown that the failure of the messenger to deliver the dispatch was aggravated by his reprehensible language afterward, evincing a malign indifference to duty, and yet in the opinion it was said that the damages—$752—were “somewhat excessive.” (Page 194.) Concluding as we do that the damages here are excessive, but that passion or prejudice of the jury such as necessarily to require a new trial does not appear, the plaintiff will be allowed to remit the sum of $800 from the amount awarded, or a new trial must be ordered. (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352.) The cause is remanded for further proceedings in accordance with these views.