Postal Telegraph Cable Co. v. Christian

delivered the opinion of the court.

Appellee brought suit against appellant for failure to-deliver a telegram. A verdict was rendered for seven hundred and fifty dollars. From the judgment of the-court this appeal is prosecuted.

The appellee resided at Shaw, Miss. On June 1, 1910,. his wife was visiting in Forest, Miss. About two o’clock p. m. on that day appellee delivered to appellant a tele*850gram, directed to luis wife at Forest, Miss., which is as follows: “Will leave on afternoon train to-morrow. You and Fay or mamma meet me in Vicksburg — will go over Park.” The telegram was not delivered to Mrs. Christian, appellee’s wife, on that day or the next day; in fact, was not delivered at Forest until about June 4th. Appellee was paralyzed, having no use of his lower limbs, and going about in a rolling chair. On June 2d, at 2:25 p. m., he boarded the train at Shaw for Vicksburg. No one met him at Vicksburg. He was taken from the train and carried to the Carroll Hotel in that city, and placed in a chair in front of the hotel, where he remained some four or five hours, waiting to take the train to Forest. It seems that this entailed on him some expense, and was attended with inconvenience and from his statement, with some physical suffering. By reason of appellant’s failure to send and deliver the telegram to Mrs. Christian, appellee, in his helplessness, did not have any one to look after his necessities and to take care of him while at Vicksburg. It appears that the rolling chair which was used by appellee at Shaw was sent by express through to Forest. It also appears that appellee had the assistance in Shaw of a colored man, who attended him. It is shown that the agent for appellant at Shaw knew the physical- condition of appellee, and knew that he had sent forward his rolling chair, .and had left Shaw for Vicksburg unattended.

Appellant’s excuse for failure to send and deliver the telegram is as follows: Its operators and agents at Shaw attempted to send the message to Memphis, because it was the custom at that office to send such telegrams through Memphis. After several efforts were made, and finally, about five o’clock p. m. on June 1st, the operator at Shaw thought that he had an acknowledgment of the receipt of the message from the Memphis office, and noted the same on the message. Nothing further was done by the operator at Shaw in the *851matter. It is not shown that there were any weather or other conditions which should have interfered with the transmission of the message. The agent at Memphis denied receiving the message.

Appellant claims that the trial court erred in granting an instruction which presented to the jury the question of punitive damages in this case. The giving of such instruction was not error. The court was justified in giving it by the law, as clearly stated in the case of Steinberger v. Western Union Telegraph Co., 97 Miss. 260, 52, South. 691. In that case the telegram was delivered to the company at Eureka, Kan., to be transmitted to Tupelo, Miss. It was not delivered, and no excuse was given therefor. It was decided that the company was liable, for punitive damages. The court, speaking through Smith, J., said: “Since appellee not only violated its duty to appellant by not delivering the telegram, hut 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. ’’

It may be said in the instant case that an excuse was offered; but it was a question of fact to be decided by the jury as to whether this excuse was sufficient, and, in fact, whether the statements made by the agents of appellant amounted to an excuse. In truth all of appellant’s testimony regarding the handling of the message was for the jury’s consideration, and the jury had the power to say whether they believed or disbelieved such testimony. It is clear that the telegram was delivered to appellant’s agent by appellee, and that it was not within a reasonable time forwarded to and delivered to appellee’s wife; that there was a failure by some agent of appellant company to properly transmit this tele*852gram. It is further clear that by reason of this failureappellee sustained actual damages. It was in the province of the jury to decide that appellant’s conduct in the matter was so grossly careless as to indicate a total disregard of appellee’s rights.

In this case the question of fact was presented to thejnry. They have decided, and we will not disturb their verdict.

Affirmed-