Chapman v. Western Union Telegraph Co.

• Decision Date: 14 June 1890
• Citation: 90 Ky. 265
• Parties: Chapman v. Western Union Telegraph Co.
• Court: Kentucky Court of Appeals

Page 265

90 Ky. 265

Chapman v. Western Union Telegraph Co.

Court of Appeals of Kentucky.

June 14, 1890.

APPEAL FROM WARREN CIRCUIT COURT.

JOSEPH G. COVINGTON FOR APPELLANT.

N. A. PORTER OF COUNSEL ON SAME SIDE.

WRIGHT & McELROY FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

This is an action against the telegraph company for damages for negligently failing to deliver to the appellant, Joseph Chapman, two telegrams, the one sent on February 12, 1888, announcing to him the dangerous illness of his father, and the other, sent on February 16, informing him of his death, and when he would be buried. They were sent from Franklin, Kentucky, to Bowling Green, Kentucky, a distance of about twenty miles. The appellant then resided in the latter city, and learning upon the street of the death of his father he called at the telegraph office on February 17 and received the two telegrams. The jury found one cent and the costs of the action.

Inasmuch as it must be tried again, we shall not discuss the evidence relating to the question of negligence. The appellant claims that by reason of it he sustained a pecuniary loss by missing a donation from his father of a promissory note, which he says his father would have given him if he had seen him in his last illness; and that he was also damaged in his feelings and affections by being thereby prevented from attending upon his father in his last illness and from attending his burial.

The claim for the first item of damage was rejected as being too remote for recovery. The second was ruled out upon the ground that damage to the feelings, not blended with physical pain arising from actual injury, or not connected with pecuniary loss, can not be a subject of recovery. The lower court substantially instructed the jury that the appellant, if entitled to recover at all, was limited to nominal damages.

The company insists that as the appellant was not the sender of the telegrams, he can maintain no action whatever. The contract under which they were sent was, however, made for his benefit. He was to be the sole beneficiary. The sender had no interest in them. This the company knew from their character. In such a case the party for whom a telegram is intended may sue the company for negligence as to it. It is said in Shearman & Redfield on Negligence, section 560: "We think, therefore, that upon the principle of these decisions a telegraph company is responsible for its negligence to a person to whom a message is addressed, as well as to the sender. If it were not so, it is obvious that the receivers of telegrams would often sustain great damage without any means of redress." This is not the English, but it is the American rule, and is, in our opinion, supported by reason, necessity and a proper policy. (Gray on Telegraphs, section 65; Wadsworth v. Western Union Telegraph Company, 86 Tenn., 695.)

The lower court properly rejected the first item of damage. It was too uncertain and remote. Greenleaf on Evidence, volume 2, section 256, says: "The damage to be recovered must always be the natural and proximate consequence of the act complained of. This rule is laid down in regard to special damage, but it applies to all damage." It does not naturally follow if the appellant had received the telegram promptly, that he would have received the donation. Perhaps his father would have given him the note. It would not, however, have been a natural consequence of his going to see him. He might, and might not, have done so. No such loss could have been contemplated by the parties to the sending of the message, if their minds had at the time been drawn to the contingency of its not being properly delivered. Considering the nature of the dispatch, they could not have contemplated that such a loss would arise from a breach of the contract. As well might one claim from a railroad company the amount of a stake in a race upon the ground that if the train had not been negligently delayed his horse would have arrived in time and won the race.

The remaining question is one of some difficulty. It has, upon the state of case now presented, been little before the courts, and but few authorities can be found. Indeed, so far as we have been able to find, but two or three courts of last resort have considered it. One of them has, at least to some extent, varied in its opinion, while the members of another have been divided as to it. It is, can one, in a case like this,...