Combs v. Southern Bell Tel. & Tel. Co.
| Decision Date | 03 March 1931 |
| Citation | 238 Ky. 341,38 S.W.2d 3 |
| Parties | COMBS v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. (two cases). |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing May 12, 1931.
Appeal from Circuit Court, Breathitt County.
Actions by S. L. Combs and Lewis Combs against the Southern Bell Telephone & Telegraph Company, consolidated for trial. From an adverse judgment, plaintiffs appeal.
Affirmed.
Henry L. Spencer, of Jackson, for appellants.
O. H Pollard, of Jackson, for appellee.
An action was instituted by S. L. Combs as jailer of Breathitt county against the appellee to recover damages from an alleged breach of contract and negligence and willful acts on the part of the employee of the appellee.
An action was instituted by Lewis Combs, as deputy jailer, to recover on the same state of facts. By agreement they are to be heard and tried together as one action. We shall consider the action of S. L. Combs, with the understanding that its determination shall apply to both.
S. L Combs, on the 25th day of December, 1925, was the duly elected and acting jailer of Breathitt county. Immediately after taking his office, there was installed by the appellee in the jail of Breathitt county a telephone for his use as jailer. He alleges that he entered into a contract with the appellee by the terms of which he agreed to pay to it a monthly rental for the use of the telephone, that it agreed to keep the telephone in operation at all times, and to keep employees in charge of its central station by whom all calls made over his telephone should be properly and speedily handled.
Chester Fugate was in the Breathitt circuit court charged with the crime of willful murder, and confined in the county jail of Breathitt county under order duly entered of record, and he was thereby placed in the custody of the appellant as jailer of Breathitt county. He alleges that this contract was in full force and effect, and while Fugate was so confined in jail and in his custody a raid was made upon the jail by a crowd of masked persons. Fugate was forcibly taken by this crowd of masked persons from the jail and appellant's custody about 2 a. m. on the 25th day of December, 1929. He states in his petition that, for more than an hour after Fugate was taken from his custody, his deputy rang the telephone in the jail at least twenty-five times in order to get the exchange to connect him with the sheriff, county judge, commonwealth's attorney, circuit judge, and other officers and persons, to summon them to the jail to assist him and his deputy in recovering and taking from the mob his prisoner and to restore him to his cell in the jail; after ringing at least six times, his deputy untied and released appellant S. L. Combs; that for one hour after he was released he and his deputy alternately and continuously rang the telephone for the purpose of communicating with such officers and persons in order to get aid to pursue the mob and, after many persistent efforts, the appellee's servant connected his telephone with C.J. Sewell, Charles Hatton, and Irvine Turner, but by its employee at the central office was abruptly, without excuse, disconnected, and failed and refused to answer his telephone, or to give him connection with such officers and persons in whose residences there were at the time installed telephones and used by them. In his pleading he further alleges that for several days thereafter the appellee, its agents, servants, and employees at its telephone exchange, publicly stated to the mayor of the town and others generally, that the central office was not rung by any telephone in the town of Jackson on the night of December 25, 1929; that no calls or connections were made with any telephone after midnight that day. As a part of his cause of action, he alleges that such report of the appellee's agent was false and untrue, and that by reason thereof the grand jury was immediately called to investigate "the said affair," resulting in an indictment against him, charging him with the crime of aiding and abetting the mob in the killing of Chester Fugate. He alleges the facts as we have stated them from his petition constitute gross negligence and carelessness, willful misconduct, and breach of duty of the appellee and its employees. Subsequently he filed an amended petition wherein he alleges that the employee of appellee in charge of its central office on the night in question had been in the employment of appellee for six to ten years, but she had become sick and her mind impaired, and was mentally incompetent to perform the duties required of her at the central office, and by reason thereof she was discharged by appellee, but with knowledge thereof the appellee again employed her and placed her in charge of the central office, and she was in charge thereof on the night in question.
By third amended petition he alleges that he, the sheriff county judge, commonwealth's attorney, and circuit judge had with the appellee "a general patron's contract" for telephone service and that they were at home where a telephone was installed by appellee. He alleges in his original petition that he fully kept and performed his contract with the appellee and paid all rentals promptly every time they were demanded of him for the use of the telephone, and that these officials and other persons would have come to his aid "in said catastrophe," and that they could and would have pursued the mob and recovered from it the said Chester Fugate, and "would and could have prevented said crime." We find this allegation in the third amended petition: "And by reason of the negligent failure of appellee's employee to respond to the calls, the ringing of the telephone to the central office and to connect same to the telephone of the officials aforesaid, he was left stranded, overpowered and tied by the mob of masked persons, and suffered great physical pain and anguish for not having the advice, service,...
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