Western Union Telegraph Co. v. Pallotta , 81 Miss. 216 ( 1902 )

Terral, J.,

delivered the opinion of the court.

William Pallota sued the Western Union Telegraph Company in the sum of $25 for statutory damages, and for the further sum of $1 00 for special damages, for failure to deliver within a reasonable time a message sent by him from Yicksburg to Mamie Pallotta, at Star, Miss. He claimed special or actual damages because of loss of a job at Yicksburg, and the jury assessed his entire damages at $70. It was in evidence that the telegram was delivered for transmission at the appellant’s office at Yicksburg on Monday, the 8th day of October, 1901, and upon that day the agent there informed Pallotta that the message had been sent; but, receiving no answer, he took the train that evening and arrived in Star on the 9th of October, when the agent there said his telegram had not been received. On the 10th of October the message was delivered in Star, and on its face bore evidence that it had been received at Star on the 9th of October. It must be obvious, therefore, that the message was not seasonably delivered, or if the time of its reception-at Star be, upon the evidence, uncertain, yet the finding of the jury has settled that point in favor of the appellee. The finding of the jury therefore supports the contention of the appellee as to the $25 statutory damages sued for.

The plaintiff below testified he was a carpenter by trade, and had on the 8th of October secured a job in Yicksburg; but the character or extent of the job, or for what time it was to continue, is not shown. There is nothing in the record to show what damages he had suffered by the loss of the job. That' upon the evidence, would be a matter of mere conjecture ; and conjecture, it has often been said, cannot support a verdict. It does not appear from the evidence in the case that Pallotta would have lost his job with Cane & Patrick at Vicksburg if he had returned there on the night of the 9th of October, as he well could have done. His only excuse for not returning appears to have been that he had no money upon which to return. That, however, was the personal misfortune of the appellee, and not the fault of the appellant. We find no evidence in the record to support the finding of the jury for any special damages.

If the excess of $25 for statutory damages be remitted, the judgment will be affirmed; otherwise it will be reversed, and the cause remanded for a new trial.