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

ilotl''i iDf Il new tflal III the case ol
Annie p. OXntr V. Western Ulion
Telegraph company, tried ut the No.
rember term Of the common pleas
court fer Newbcrry county.
1t will be recalled that Mrs. Ok
ncr sued the Western Union for al
legged mental anguish caused to her
by failure Of The Western Union To-
deliver 20 hcr father, Mr.. Geo. w.
Pearson. in Newberry, telegram
which snc had forwarded from Whit
mlrc cn the day after the inv fire
here. asking. "Are yo;, .afc3' Mrs
OSncr'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..
OXncr desired to hear from her par-
cnts aid children on account of the
Fact that there had been disastrous
ire here. He submitted to the iurv,
however, the question of actual dam
ages FOR breach of contract, and the
question of punitive damages for
wlltulness, and the jury returned a
verdict for $5l0. Messrs. Hunt, Hunt
and Hunter gave notice Of motion for
nav trial and McSsrs. Blease and
D"mInlck. for the plaintiff. agreed to
take up the moti'G before Judge
Gary il Columbia.
at the hearing on Tuesday Mr..
Erred II. Dominick appeared for the
plaintiff and Mr. James b. Hunter
for The defendant.
Followin" is the order of Judge
Gary refusing the motion for Il new
trial:
On this date, by consent Of the at
torneys in the cause. motion for Il
new trial, having been adjourned by
written order. (the day to be agreed
upon by the attoraeys). and the at
torneys for plaintiff and defendant.
having consented that the hearing be
mad on this dale at Columbia, S. c.,
III pursuance Of said written order
aid the counsel representing plain
tlff 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:
1T 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 il writ
ing and accepted by the defendant
for transmission ana delivery. The
evidence further shows that the mes
sage was not promptly delivered. but
III fact has never been delivered, al
though the Sendec was an old resi-
dent of the city Of Newberry and
was living at the time and had been
Tor 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,
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 jury upon the question of ex-
emplary damages.
Now, in this ease, as above stated.
there was an entire failure to deliv-
cr: the verdict of the jury, then, is
responsive to the question Of wan-
tonnes and wilfulness, which was
submitted to the jury in a written in
terrogation which is as follows:
"If You conclude from the evi-
dence that the defendant was guilty
OF negligence in not promptly de-
liveiing the message alluded to in
testimony, and That the plaintiff was
damaged thereby:
Then you will say whether on not
the negligence was wanton or will
ful7
The jury having found verdict as
follows.