
    Western Union Telegraph Co. v. Jennings.
    [70 South. 830.]
    1. Toets. Actions. What law governs. Damages. Punitive damages. The law of the state where a tort occurs governs the right of action.
    2. Damages. Punitive damages.
    
    In the state of Missouri, actual damages must have been sustained as a basis for the recovery of punitive damages,, and in the absence of actual damages no punitive damages may be recovered.
    Appeal from the circuit court of Simpson county.
    Hon. W. H. Hughes, Judge.
    Suit by Henderson'Jennings against the Western Union Telegraph Company. F!rom a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      Street é Street, for appellant.
    J. B. Sullivan, for appellee.
   Sykes, J.,

delivered the opinion of the court.

This is a suit for damages by the appellee, Henderson Jennings, against the Western Union Telegraph Company, based upon the following facts, viz.:

The appellee and another young man were given employment by the proper employee of the Western Union Telegraph Company at St. Louis, Mo., and were sent to Tipton, Mo., at a salary each of forty dollars a month. They were to work as linemen of the appellant company, but state that they were put to work digging holes which they did not consider proper work for linemen, and for this reason, after working two and one half days, they quit and went back to St. Louis, Mo., where the agent of the company who had employed them, viz., one Mr. Sharp, lived. Shortly after their arrival in St. Louis the appellee called up, over the telephone,- Mr. Sharp and stated to him that the foreman at Tipton, Mo., had not given them line work, hut had put them to digging holes, and that for this reason they had quit. Appellee stated that Sharp replied: “If you and Foster cannot dig holes for the Western Union Telegraph Company, go and scratch for a job. ” Appellee then asked him what he meant, and Sharp' replied: “If you and Foster can’t dig holes for the Western Union Telegraph Company, go to hell. ’ ’ Suit was instituted in the circuit court of Simpson county for two thousand, five hundred dollars, damages. No actual damages were proven. The jury returned a verdict for appellee for one hundred and fifty dollars, evidently assessed as punitive damages under the instructions.

The alleged tort upon which this cause of action is predicated occurred in the state of Missouri, and for this reason the law of that state governs as to whether or not the appellee has a cause of action. Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53.

In Missouri, actual damages must have been sustained as a basis for the recovery of punitory damages, • and in the absence of any actual damages no punitive damages ■may be recovered.

The above rule is fully set forth in the case of Hoagland v. Forest Park Highland Amusement Co., 170 Mo. 335, 70 S. W. 878, 94 Am. St. Rep. 740. From this decision we make the following quotation:

“It is claimed that the judgment should be reversed upon the ground that the jury by their verdict gave the plaintiff no compensatory damages, while they assessed in his favor punitive or exemplary damages. ... It is held in 1 Sutherland on Damages (2d Ed.) section 406, and in Kiff v. Youmans, 86 N. Y. 324, 40 Am. Rep. 543, Stacy v. Portland Pub. Co., 68 Me. 279, Freese v. Tripp, 70 Ill. 499, Maxwell v. Kennedy, 50 Wis. 648, 7 N. W. 657, Jones v. Matthews, 75 Tex. 1, 12 S. W. 823; Trawick v. Martin Brown Co., 79 Tex. 460, 14 S. W. 564, Schippel v. Norton, 38 Kan. 567, 16 Pac. 804, Kuhn v. Chicago, etc., R. R. Co., 74 Iowa, 137, 37 N. W. 116, and Mills v. Taylor, 85 Mo. App. 111, that actual damages must be found as a predicate for the recovery of exemplary damages. The verdict, therefore, seems to be inconsistent with itself, for when no actual damage has been sustained, as found by the jury in the ease at bar, no exemplary damages can be allowed, nor can exemplary damages constitute the basis of a cause of action, for they are mere incidents to it, and when given they are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it is proper for the public to impose them upon the defendant, as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him. No right of action for exemplary damages, however, is ever given to any private individual who has suffered no real or actual damages. He has no right to maintain an action merely to inflict punishment upon seme supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has. no cause of action at all.”

We therefore hold that the appellee has failed to make out a canse of action, and for this reason the judgment of the lower court is reversed, and the case dismissed.

jReversed and dismiss  