The Western Union Telegraph Company v. Briscoe

• Decision Date: 08 June 1897
• Docket Number: 2,177
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. BRISCOE
• Court: Indiana Appellate Court

47 N.E. 473

18 Ind.App. 22

THE WESTERN UNION TELEGRAPH COMPANY v. BRISCOE

No. 2,177

Court of Appeals of Indiana

June 8, 1897

From the Monroe Circuit Court.

Reversed.

J. H Louden and Theodore J. Louden, for appellant.

J. R East, W. H. East and R. G. Miller, for appellee.

OPINION

HENLEY, J.

At about the hour of 7 o'clock on the morning of November 4, 1895, one Phillip Briscoe, a brother of the appellee, placed in the hands of the appellant's agent at Morgansfield, Kentucky, a message directed to appellee, which message was as follows: "Morgansfield, Kentucky, Nov. 4, 1895. Sam Briscoe, Carpenter, Bloomington, Indiana--Your mother died at two this morning. Come immediately. Answer. Philip Briscoe."

The sender paid the charges for sending the message at the time it was placed in the hands of appellant's agent at Morgansfield, Kentucky, and said agent transmitted the message to Bloomington, Indiana, where the same was duly received on November 4, 1895, at eight o'clock and ten minutes a. m. Information of the contents of the message was received by the appellee about 1 p. m. of that day, and the message delivered to him about one hour later. Appellee took the train south on the afternoon of November 4, 1895, for the purpose of attending his mother's funeral. The train on the B. & O. S.W. R. R. was thirty minutes late at Vincennes, causing appellee to miss his connection there, and delaying him more than twelve hours; so that when he arrived at the home of his mother she had been buried, and he was thus prevented from seeing her or attending her funeral. The message was written upon a blank furnished the sender by the appellant. Within the sixty days' time allowed by one of the conditions printed upon the blank upon which the message was written, appellee gave appellant written notice of his claim, and demanded payment, which being refused, he began this action in the lower court by a complaint, in one paragraph, claiming damages in the sum of five hundred dollars on account of the negligent failure of appellant to deliver the message to appellee within a reasonable time after its receipt at Bloomington. To this complaint the court overruled a demurrer, and appellant answered in four paragraphs. The first was a general denial. The second pleaded one of the conditions of the contract entered into by the sender. The second paragraph of the answer is as follows:

"Second paragraph. And for further answer herein, said defendant says that said message mentioned in the complaint of said plaintiff was sent under a special contract and agreement, a copy of which is filed herewith and made a part hereof, marked 'exhibit A;' that by virtue of said contract said defendant was not to be liable for mistakes or delays in the transmission or delivery or nondelivery of any unrepeated message beyond the amount received for sending the same; the message mentioned in said plaintiff's complaint was an unrepeated message; that said defendant, before the commencement of this suit, offered to pay to said plaintiff forty cents, the amount paid for the transmission of said message, and now pays the same into court for said plaintiff.

"Wherefore said defendant demands judgment for costs."

The third and fourth paragraphs of answer both set up facts in relation to the delivery of the message, showing, in the judgment of the lower court, diligence and excusable delay in the delivery of the message. A demurrer was sustained to the second paragraph of the answer, and overruled to the third and fourth. A reply was filed, and upon the issue thus joined a trial was had by jury, and a special verdict by way of answers to interrogatories was returned. Both parties, by proper motion, demanded judgment upon the special verdict. The motion of appellee was sustained. Appellant moved for a new trial, which was overruled, and judgment rendered in favor of appellee for four hundred and forty dollars.

The first error assigned by appellant questions the ruling of the court upon the demurrer to the complaint. The error of the lower court, if any, in overruling the demurrer to the complaint, is waived on account of the failure of appellant's counsel to discuss it.

The second cause assigned, "That the court erred in sustaining the demurrer of the appellee to the second paragraph of appellant's answer," has no merit under the decisions of the Supreme Court of this State. Western Union Tel. Co. v. Meek, 49 Ind. 53; Western Union Tel. Co. v. Fenton, 52 Ind. 1; Western Union Tel. Co. v. Adams, 7 Ind. 598; Western Union Tel. Co. v. Meredith, 95 Ind. 93.

We next come to the consideration of the action of the court in rendering judgment upon the verdict in favor of appellee and against appellant. We assume that in rendering the judgment for appellee upon the facts found by the special verdict, it was the judgment of the lower court that the facts so found established the negligence of appellant, and the absence of negligence upon the part of appellee. We assume, also, that the facts pleaded in the third and fourth paragraphs of appellant's answer were considered by the lower court, either as defenses necessary so to be pleaded, or, if the facts so pleaded therein were admissible under the general issue, they would, if found by the jury to be true, constitute a complete defense to the action. This is one of those cases where the damage sustained by the claimant is wholly such damage as is caused by mental anguish occasioned by the failure to transmit the message, no pecuniary loss being shown, or attempted to be shown, other than the cost of the message. It is settled in this State that there may be such recovery. Reese v. Western Union Co., 123 Ind. 294, 24 N.E. 163; Western Union Tel. Co. v. Stratemeier, 6 Ind.App. 125; Western Union Tel. Co. v. Newhouse, 6 Ind.App. 422, 33 N.E. 800.

Upon this point the writer of this opinion, speaking for himself, believes that the cases last cited are against the great weight of authority in this country, and are not sustained by sound reasoning.

The facts properly found by the jury were that appellant, a corporation, owned and operated a line of wires, used in telegraphing; that Morgansfield, Kentucky, and Bloomington Indiana, were stations on said line; that appellee's mother died at 2 a. m. on the 4th day of November, 1895, at the home of Philip Briscoe, appellee's brother; that Philip Briscoe delivered to app...