Gardner v. Cumberland Telephone Co.

• Decision Date: 10 February 1925
• Parties: GARDNER v. CUMBERLAND TELEPHONE CO. ET AL.
• Court: Kentucky Court of Appeals

268 S.W. 1108

207 Ky. 249

GARDNER v. CUMBERLAND TELEPHONE CO. ET AL.

Court of Appeals of Kentucky.

February 10, 1925

Appeal from Circuit Court, Breckenridge County.

Action by Newsome Gardner against the Cumberland Telephone Company and another. Judgment for defendants on demurrer to complaint, and plaintiff appeals. Affirmed.

Claude Mercer, of Hardinsburg, for appellant.

Moorman & Walls, of Hardinsburg, and Trabue, Doolan, Helm & Helm and Humphrey, Crawford & Middleton, all of Louisville, for appellees.

SAMPSON J.

A general demurrer was sustained to appellant Newsome Gardner's petition, alleging: The agent of the two appellees, telegraph company and the telephone company, had summoned him to the telephone station at Irvington, with directions to call the office of the Western Union Telegraph Company at Owensboro, to receive a telegram, and that in pursuance to said summons he had gone to the telephone office, and called the telegraph office in Owensboro, and was delivered and received a message over the telephone in these words: "John died last night. Doc." That he was informed by the telegraph company that the message was from Louisville, in which city he had a brother named John, and that he immediately concluded that his brother John was dead which caused him great mental anguish. That he took the first fast train to Louisville and arrived there the next day only to find his brother alive and well. That the two defendants the telegraph company and the telephone company, had negligently and carelessly delivered to him a message intended for another, and had thus caused him to suffer great anguish and mental distress. "That the said telegram was wrongfully delivered to him by the said telegraph company and was not intended to be delivered to him, and that, by their said gross negligence in thus sending said telegram they caused plaintiff to suffer great mental anguish because of his being led to believe and he did believe that his brother had died in Louisville."

It was further alleged:

"That the defendants, and each of them, were guilty of gross negligence and carelessness in thus summoning him to the telephone aforesaid and he receiving the telegram as above mentioned, all of which caused him to suffer great damage."

Appellant, Gardner, having declined to further plead after the general demurrers were sustained to his petition, it was dismissed, and it is from that judgment he appeals. In brief of counsel for appellant it is said:

"We assume that the lower court sustained the demurrers upon the assumption that there can be no recovery for mental anguish in cases of this sort. In this the lower court was wrong. Not only can you recover for mental anguish in death telegrams, but, as stated in 26 R. C. L. p. 610: 'Still other courts, however, have extended the rule of recovery to all those cases where mental suffering may be reasonably anticipated as the natural result of the breach of contract, and this is shown on the face of the telegram.' "

Both the telephone company and the telegraph company filed separate briefs in which are collected and cited many cases and texts, some from Kentucky, supporting the rule that a recovery for mental anguish in telegraph and telephone cases is allowed only in cases where there has been a breach of contract. Postal Telegraph Co. v. Terrell, 124 Ky. 822, 100 S.W. 292, 30 Ky. Law Rep. 1023, 14 L. R. A. (N. S.) 927. And that a recovery may be had for mental anguish in other cases only where it is shown that the person suffering the mental anguish also suffered a physical injury. This court has adopted the rule in all, except telegraph and telephone cases, that there can be no recovery for mental pain and suffering resulting from the mere negligent act of another unaccompanied by any physical or bodily injury. Smith v. Gowdy, 196 Ky. 281, 244 S.W. 678, 29 A. L. R. 1353; Newport News & M. Valley Co. v. Gholson, 10 Ky. Law Rep. 938; Hockenhammer v. Lexington & E. R. Co., 74 S.W. 222, 24 Ky. Law Rep. 2383; City Transfer Co. v. Robinson, 12 Ky. Law Rep. 555. But in telephone and telegraph cases a recovery for mental anguish may be had if it is accompanied by a breach of contract. Chapman v. W. U. Tel. Co., 90 Ky. 265, 13 S.W. 880, 12 Ky. Law Rep. 265; Postal Tel. Co. v. Terrell, supra; W. U. Tel. Co. v. Melvin, 175 Ky. 480, 194 S.W. 563; Reed v. Ford, 129 Ky. 471, 112 S.W. 600, 19 L. R. A. (N. S.) 225; Reed v. Maley, 115 Ky. 815, 74 S.W. 1079, 25 Ky. Law Rep. 209, 62 L. R. A. 900, 2 Ann. Cas. 453. If the mental anguish is accompanied with a physical injury, recovery may be had. Owensboro City R. Co. v. Robertson, 104 S.W. 707, 31 Ky. Law Rep. 1047; Kentucky Cent. R. Co. v. Ackley, 87 Ky. 278, 8 S.W. 691, 10 Ky. Law Rep. 170, 12 Am. St. Rep. 480; Alexandra v. Humber, 86 Ky. 565, 6 S.W. 453, 9 Ky. Law Rep. 734; Newport News & M. Valley Co. v. Gholson, supra. An exhaustive note with cases may be found to Herrick v. Evening Exp. Pub. Co., reported in 23 A. L. R. p. 361.

"The general rule," says 17 C.J. 831, "supported by the weight of authority, is that mental pain and suffering will not alone constitute a sufficient basis for the recovery of substantial damages. Certain exceptions to this rule are recognized in actions for breach of contract of marriage, and certain cases of willful wrong, especially those affecting the liberty of personal security, character or reputation, or domestic relations of the injured person, in which cases mental suffering is recognized as the ordinary, natural, and proximate consequence of the wrong complained of. In any event a very slight injury constituting a ground of action will support a recovery for accompanying mental suffering."

"At common law it was well settled that mere injury to the feelings or affections, though wrongful, did not constitute an independent basis for the recovery of damages. As a general rule, following this theory, a recovery cannot be had for mental anguish alone, unmixed with other injury, or, as otherwise stated, where a physical injury has been sustained, the person injured may recover for mental suffering caused by or growing out of his bodily hurt." 8 R. C. L. 516; Kentucky Cent. Railway Co. v. Ackley, 87 Ky. 278, 8 S.W. 691, 10 Ky. Law Rep. 170, 12 Am. St. Rep. 480; Standard Oil Co. v. Tierney, 92 Ky. 367, 17 S.W. 1025, 13 Ky. Law Rep. 626, 14 L. R. A. 677, 36 Am. St. Rep. 595; Greer v. Louisville & N. R. Co., 94 Ky. 169, 21 S.W. 649, 14 Ky. Law Rep. 876, 42 Am. St. Rep. 345; Southern Ry. Co. v. Goddard, 121 Ky. 567, 89 S.W. 675, 28 Ky. Law Rep. 523, 12 Ann. Cas. 116; Louisville & N. R. Co. v. Greer, 94 Ky. 169, 21 S.W. 649, 14 Ky. Law Rep. 876; Louisville & N. R. Co. v. Brown, 127 Ky. 732, 106 S.W. 795, 32 Ky. Law Rep. 552, 13 L. R. A. (N. S.) 1135; Big Sandy & C. Ry. Co. v. Blankenship, 133 Ky. 438, 118 S.W. 316, 23 L. R. A. (N. S.) 345, 19 Ann. Cas. 264; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742, Ann. Cas. 1913E, 500.

In the case before us Gardner was not a party to the contract...