Postal Telegraph Cable Co. v. Terrell

• Decision Date: 05 March 1907
• Parties: POSTAL TELEGRAPH CABLE CO. v. TERRELL.
• Court: Kentucky Court of Appeals

100 S.W. 292

124 Ky. 822

POSTAL TELEGRAPH CABLE CO. v. TERRELL.

Court of Appeals of Kentucky.

March 5, 1907

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"To be officially reported."

Action by Lou Terrell against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leopold & Pennebaker, for appellant.

Beckley & Scott, for appellee.

HOBSON J.

Mrs Lou Terrell, the wife of Geo. E. Terrell, of Louisville, left Louisville on January 28, 1903, at 12 m. on the Illinois Central train to go to her father's home at Memphis Tenn. The train, if on time, would reach Memphis at 12:1 that night. At 6:30 that evening her husband sent to her father the following telegram: "Louisville, Ky. January 28, 1903. "Jerry Johnson, 564 Lauderdale St., Memphis, Tenn. Meet Lou at I. C. depot to-night. Geo. E. Terrell." At the time the message was sent the clerk told Terrell that the message would go through in 20 minutes. It did reach Memphis in due time, but was not delivered. Mrs. Terrell's train reached Memphis two hours late, or about 2 o'clock in the morning. She had been summoned to Memphis on account of the sickness of a sister, and expected some of the family to meet her. She had with her two little children, aged three and one years. Her father lived about three miles from the station, and to get to his house it was necessary to pass through the red light district and the residence part of the city. When nobody met her, she went in the station and remained there with her children until 6 o'clock, when she took a street car and went home. The street cars had stopped running at 12 o'clock, and she testified that she would not like to trust herself through at that time of night in a cab or hack; that the Patterson Company is a transfer similar to the Louisville Transfer Company, but she did not communicate with it; that she walked to the window, and when she saw the colored men she did not think she would trust herself with them. She had lived in Memphis, and knew something of the hotels, but had never been to any of them. Her father kept a vehicle and would have come to meet her if the telegram had been delivered. She testified that there were men dressed very rough in overalls with trousers tucked in their boots, lying on the floor of the depot, and that she was worried and frightened, and suffered mental anguish by having to remain there until morning. The defendant introduced proof tending to show that the numbers on the streets had been changed; that the number of Johnson's house, 564, was not the number given in the directory; and that the boy who went out to deliver the message failed for this reason to find the house. There was proof, however, that Johnson had lived there 20 years, that he was well known in the city, and that he had never changed his residence or the number of his house.

On these facts the court instructed the jury as follows:

"(1) The court instructs the jury that it is admitted by the evidence of the defendant that it received the telegram specified in the pleadings and proof for delivery, and was paid in advance therefor. It then became the duty of defendant to use ordinary diligence to deliver same to the address and party named therein, and, if you believe from the evidence that it negligently failed to deliver to the addressee or his house as per direction, then the law is for the plaintiff, and the jury should so find.

(2) The jury is further instructed that in estimating damages, if you find for the plaintiff, you can only find in addition to the sum of 30 cents, which defendant offers to confess judgment for, such a sum as will fairly and reasonably compensate the plaintiff for such mental and physical suffering as is shown to be the direct and proximate result of the negligent failure of the defendant to deliver the said telegram, in all not exceeding the sum of $1,500.

(3) If, however, the jury shall believe from the evidence that the defendant used ordinary diligence in its effort to deliver said telegram within a reasonable time, then it was not guilty of negligence in failing to so deliver, and, in that event, the jury should find for the plaintiff in the sum of 30 cents. It was, however, the duty of plaintiff, when her friends failed to meet her at the depot as alleged and proven, to exercise that degree of care for her own safety and comfort which ordinarily prudent persons usually exercise under like circumstances, and, if you believe from the evidence that she failed to exercise that degree of care and caution, then she cannot recover in the action for any mental or physical suffering endured by her in consequence of such failure upon her part, if any, even though you may believe the defendant was negligent as stated in instruction No. 1.

(4) By the term 'negligence' is meant the failure to observe ordinary care.

(5) By 'ordinary care' is meant that degree of care usually exercised by ordinarily prudent persons under similar circumstances."

The jury returned a verdict for the plaintiff in the sum of $500, on which the court entered judgment, and the defendant appeals.

It is earnestly insisted for appellant that no recovery should be had on account of mental suffering in a case like this. It is conceded that the rule established by this court allows mental suffering as an element of damage for the failure to deliver telegrams announcing to near relatives the sickness or death of a member of the family, but it is urged that the rule has never been carried further, and should not be. There is no effort in this case to recover for the mental suffering of the husband or father because the telegram in question was not delivered. The telegram was sent by the husband for the benefit of the wife, and the effort is to recover for her mental suffering by reason of the nondelivery of the telegram sent for her benefit. The telegram on its face showed that it must be delivered that evening, or it would be too late. It also showed that it was sent to apprise Mr. Johnson of the coming of a female at midnight, and that he must meet her at the station. It showed upon its face the residence of Johnson, and this was something like three...