Steinberger v. Western Union Telegraph Co.

delivered the opinion of the court.

Appellant instituted suit in the court below to' recover of appellee punitive damages for its alleged wanton and wilful negligence in failing to deliver a telegram. On Wednesday, the 4th day of November, 1908, a telegram was delivered to appellee at Eureka, Kan., for transmission to appellant at Tupelo, Miss. This telegram was never delivered, and so far as the evidence discloses no attempt was made by appellee so to do. At the close of the evidence a peremptory instruction was given on behalf of appellee, and there was a verdict and judgment accordingly.

The sole question presented to us oh this1 record is whether the jbry, under the evidence, would have been warranted in awarding appellant punitive damages. Since appellee not only violated its duty to appellant by not delivering the telegram, but offered no excuse at all therefor, the jury could hardly escape the conclusion that its conduct in the matter was so grossly careless as to indicate a total disregard of appellant’s rights. In fact, they would have been warranted in believing that its failure to deliver was intentional; otherwise, some excuse would have been given therefor. Of course, appellee knew that such an act was wrongful. The imposition of punitive damages would therefore have been warranted, and .the peremptory instruction ought not to have been granted.

Reversed and remanded.