36 S.E.2d 111 | Ga. Ct. App. | 1945
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, *185 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.
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, *188 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.,
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 *190
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,
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,
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 *191
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,
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. *192