I am unable to concur in the conclusion that there should be a reversal on the ground that there was no evidence whatever of a wilful breach of duty on the part of defendant.
The case falls close to the dividing line between negligence which is gross and misconduct which is so reckless and disregardful of duty as to imply wilfulness, but I think it was properly submitted to the jury, and the refusal of the trial Court to disturb the verdict should not be held error.
This Court has sustained the right of a telegraph company to establish reasonable office hours and will ordinarily exonerate it from any duty to transmit and deliver messages *Page 128 at other than such reasonable hours, but when reasonable hours are established certainly those who deal with the company have the right to expect careful attention to duty within such hours. It appears that the office hours at Bowman on Sunday were from 8 to 10 A.M. and 4 to 6 P.M. The fact that the office at Bowman does not handle many messages on Sundays may show the reasonableness of the hours adopted, but it does not excuse a wanton neglect on the part of defendant's agent to give attention to his duty during these hours. The evidence shows that the agent at Bowman gave very little attention to the established office hours. It appears that he went to the office about 9 o'clock A.M. and left a few minutes after 9:30 A.M., and it was for this reason that the call from Atlanta at 9:45 A.M. was unavailing. Atlanta did not call Bowman again until that afternoon, when after repeated calls the message was finally received at Bowman at 4:58. So that the explanation for the long delay in transmission is not the existence of reasonable office hours, but that defendant's agent at Bowman could not receive the message before he did because he was absent from his post of duty, in violation of the regulation of the company as to office hours. Whether defendant was wantonly disregardful of its duty to plaintiff was to be determined not merely by the conduct of its transmitting agent, but also by the conduct of its receiving agent. The evidence shows this is a stronger case for punitive damages, than Doster v. Tel. Co., ante 56.
The judgment of the Circuit Court stands affirmed.
MR. JUSTICE WOODS concurs. *Page 129