after stating the case: An. impression not infrequently exists, and is sometimes acted on, that in the larger number of ordinary causes compensatory damages should be confined to actual pecuniary loss, and that any recovery above actual loss in money or time having definite pecuniary value partakes of the nature of punitive damages. Speaking to this question in a concurring opinion in
Ammons v. R. R.,
140. N. C., 199, it was said: “The court below and the parties litigant seem to have considered that the seventh issue on actual
*25
damages was confined to pecuniary loss, and that any recovery over and above this must be had, if at all, on the eighth issue, above set out. But this is not at all true. ‘Actual,’ in the sense of compensatory damages; is not restricted necessarily to the actual loss in time or money. The claimant may be confined to this, if the jury so determine, but more than this is contained in the term, and more than this is covered by the issue.” As said by
Clark, C. J.,
in
Osborn v. Leach,
And on the subject of punitive damages it was further said: “Exemplary or punitive damages are not given with a view to *26 compensation, but are under certain circumstances awarded, in addition to compensation, as a punishment to defendant and as a warning to other wrongdoers. They are not allowed as a matter of course, but only where there are • some features of aggravation, as when the wrong is done willfully and maliciously, or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of plaintiffs rights.”
In the view of compensatory damages, suggested with approval in this citation, there was error in the ruling which limited plaintiff’s recovery in any aspect of the case to the $3, the amount of money wrongfully collected by defendant, whether the action should be considered as one for a breach of contract or for a tort. It is true that recovery for breach of contract is confined to such damages as were in the reasonable contemplation of the parties at the time same was made and which are susceptible of ascertainment with a reasonable degree of certainty, and that ordinarily this damage is limited to pecuniary recompense for the loss sustained by the injured party; but this will be found to have its origin and basis in the fact that the vast majority of contracts concern themselves with pecuniary values and have the pecuniary standard for adjustment alone in contemplation; but where an agreement clearly has reference to a different standard, damages in case of breach must be awarded according to the standard which the parties have adopted. This is the principle upon which recoveries for mental anguish in a certain class of telegraph cases, and when treated simply as actions for breach of contract, are properly made to rest, as shown in the well-considered opinion by our present
Chief Justice
in
Young v. Telegraph Co.,
On the allegations of the complaint, however, and the facts in evidence, the plaintiff is not confined to a recovery for breach of contract. It appears that,,, defendant is a public-service corporation operating under a public franchise, and for breach of duty in rendering the service it has undertaken to perform, one having contract relations with such company and suffering special injury by reason of such breach is entitled to sue in tort, and, in case of recovery, have his damages admeasured as in that character of action. This was held in
Peanut Co. v. R. R.,
Plaintiff, then, having a right to sue in tort if his cause of action is established, is entitled to recover a compensation for the annoyance and inconvenience and humiliation fairly attributable to the wrong done and under facts as they existed at the time the same was committed. Peanut Co. v. R. R., supra.
■
And in this view the annoyance and inconvenience naturally arising from the fact that plaintiff’s father-in-law was at the time in the hosj)ital and supposed to be in a dangerous condition, if this circumstance was known to the company or its managing officers — not, of course, the suffering and anxiety caused by the father-in-law’s placing and condition, but the annoyance and anxiety occasioned by the loss of the telephone service at such time. In considering any damages imputable to this source, the obligation on plaintiff to do what he reasonably could to lessen his anxiety, is also a proper subject for consideration.
Bowen v. King,
*28
On the question of punitive or exemplary damages, recurring again to the doctrine as stated in the
Ammons case, supra,
if the jury should find that the wrong complained of was committed and that the same was done maliciously or under such circumstance of willfulness on part of defendant as to show a wanton or reckless disregard of plaintiff’s rights, they may, in addition to compensatory damages, award such additional damages by way of punishment as they may deem right and proper. In this aspect of the matter the principles and authorities applicable are more fully discussed and referred to in the case of
Williams v. R. R.,
On this question of allowing exemplary damages, as well as the amount, in case the jury should determine to award' the same, the fact that plaintiff informed defendant of the payment of the amount due and that he had a receipt showing this, and that defendant still insisted there was no such payment, and, further, the fact that plaintiff had several times before made default in payment of his dues, and that this collecting agent had informed the managing officers of the company there was a balance still due, _ and that the books of the company showed this to be correct, are circumstances relevant. to the inquiry.
For the error indicated plaintiff is entitled to a new trial of this cause, and it is so ordered.
New trial.