The herald and news. [volume] (Newberry S.C.) 1903-1937, 1908-01-03
NEW TRIAL REFUSED.
Judge Gary Allows Verdict in Case
of OXner Y. Western Union
To Stand.

vember term Of the common pleas
court fer Newberry county.
1t will be recalled that Mrs. Ok
ner sued the Western Union fo: al
legged mental anguish caused to her
by failure Of the Western Union to
deliver 20 ner father, Mr.. Geo. W.
Pearson. in Newberry, a telegram
which SIZE had forwarded from Whit
mlre In the day after the mig fire
here. asking. Are yo;, safe?" Mrs.
OXner'S two children were at that
time in Newberry with their grand
parents. Mr.. and Mrs. Pearson.
Judge Gary withdrew the question
of mental anguish from the Jury,
holding that the telegraph company
had not been put on notice that Mr..
Oxner desired to hear from her par
ents and children on account of the
fact that there nad been disastrous
fire here. He submitted to the jury,
however, the question Of actual dam
ages for breach Of contract, and the
question Of punitive damages for
wilfulness, and the jury returned a
verdict for $5l0. Messrs. Hunt, Hunt
and Hunter gave notice Of motion for
new trial and Messrs. Blease and
Dominick, for the plaintiff, agreed to
take up tae motioG before Judge
Gary il Columbia.
At the hearing Oh Tuesday Mr..
Fred H. Dominick appeared for the
plaintiff and Mr.. James B. Hunter
for the defendant.
Following is the order of Judge
Gary refusing the motion for a new
trial:
On this date, by consent Of the at
tcrneys in the cause. a motion for a
naw trial, having been adjourned by
! written order, (the day to be agreed
upon by the attor1eys), and the at
torneys for plaintiff and defendant,
! having consented that the hearing be
had on this date at Columbia, S. G.,
in pursuance Of said written order
and the counsel representing plain
tiff and defendants, having appear
ed for such hearing, motion for a,
new trial was made on written
grounds herewith filed with this Or
der. After considering the same:
IT is ordered:
| That the motion be refused for
the reason that the evidence shows
that plaintiff delivered to the defend
ant company for transmission mes
sage and paid the usual charges
therefor, which message was in writ
ing and accepted by the defendant
for transmission and delivery. The
evidence further shows that the mes
sage was not promptly delivered, but
in fact has never been delivered, al
though the sandee was an old resi-
dent of the city of Newberry and
was living at the time and mad been
for some years previous, within the
delivery limits Of the office of the
defendant company.
The plaintiff was actually damaged
to the extent of the amount paid for
the transmission of the said message,
which amount has never been return
ed or rendered to the plaintiff; so the
main or vital question in the case is,
whether the facts proven would
support the verdict Of the jury on
the question Of punitive or exemplary
damages.
Upon this point, the court has re-.
peatedly held that the failure to de-
liver a message accepted by a tele-
graph company for transmission and
delivery within a reasonable time, is
competent evidence to be submitted
to a jury upon the question OF ex-
emplary damages.
Now, in this case, as above stated,
there was an entire failure to dellv-
er: the verdict of the jury, then, is
responsive to the question Of wan
tonnes and wilfu1nsss, which was
submitted to the jury in a written IN
terrogation which is as follows:
eff you conclude from the evl- e,
dence that the defendant was guilty
of negligence in not promptly de-
live1ing the message alluded to IN
testimony, and that the plaintiff was
damaged thereby:
Then you will say whether or not
the negligence was wanton or will
ful?"
The jury having found verdict as
follows:
"We find for the plaintiff $4,000