W.U. Tel. Co. v. McCaul

• Decision Date: 29 January 1906
• Citation: 90 S.W. 856,115 Tenn. 99
• Parties: WESTERN UNION TELEGRAPH CO. v. McCAUL.
• Court: Tennessee Supreme Court

90 S.W. 856

115 Tenn. 99

WESTERN UNION TELEGRAPH CO. v. McCAUL.

Supreme Court of Tennessee.

January 29, 1906

Appeal from Circuit Court, Gibson County; Jno. R. Bond, Judge.

Action by W. F. McCaul against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Deason Rankin & Elder, for appellant.

Harwood & Wade and W. W. Powers, for appellee.

SHIELDS J.

W. F McCaul brings this action to recover damages for the grief and anguish sustained by him in consequence of the delay in receiving an answer to a telegram sent by him over the wires of the defendant from Sikeston, Mo., to Trenton, Tenn addressed to Mrs. M. C. McCaul, care of Joe Knox, in these words:

"Send me fifty dollars at once. Hugh is is dead."

W. F. McCaul was at Sikeston, Mo., where his son Hugh had just died, and desired $50 to bring his remains to Tennessee for interment. Joe Knox resided in Trenton, and Mrs. M. C. McCaul, in the country, three miles distant.

The telegram was delivered to the agent of the company by the sender at Sikeston, addressed as stated. The fact that Mrs. McCaul lived in the country was not disclosed to the agent of the company at that place. The agent at Trenton, who knew all the parties, received the message at 9:30 o'clock in the morning, and knowing that Mrs. McCaul did not live within the delivery of his office, sent it out to be delivered to Joe Knox, in whose care it was addressed. The messenger inquired for him at his usual place of business, and was reliably and correctly informed that he had gone to the country, and would not return for some time, and the message was then returned to the office. About 12 o'clock of the same day, it was again sent out and delivered to Mrs. Joe Knox, at the residence of her husband, and she immediately forwarded it to Mrs. McCaul. Joe Knox returned from the country at 1:30 o'clock that evening, and later receiving directions from Mrs. McCaul to do so, had $50 wired the plaintiff, as requested by him, but the latter did not receive notice of the fact until after the burial of his son on the succeeding day.

The negligence averred is 2 1/2 hours delay in delivery at Trenton, resulting in the failure of the plaintiff to receive the money until after the burial of his son upon the next day.

There was verdict and judgment for $300 against the plaintiff in error, and it has appealed and assigns a number of errors, only three of which it will be necessary to notice.

1. The first assignment is predicated upon the action of the trial judge in instructing the jury that the plaintiff in that court was entitled to recover damages for the mental anguish and grief sustained by him, if any, by the delay in receiving the money for which he wired to bring the body of his son to his home in Tennessee for burial, and in having to bury him away from home and in a strange place, and in refusing to charge that the proper measure of damages in this case was the cost and expense of exhuming and reinterment in Tennessee. It must be sustained. This court has held that parties injured could recover damages for mental anguish and grief sustained by them in being denied the privilege of attending to the bedside of near relatives during their last hours, of superintending the preparation of their bodies for interment, and of being present at their burial; but in no other cases. The rule upon which such damages are allowed is of difficult application, and its policy and soundness has been questioned in many courts of high authority, and we do not deem it proper to extend it to other cases than those to which it has been applied in this state. This also seems to be the tendency of other courts of last resort in states where the mental anguish doctrine prevails. Telephone Co. v. Arnold (Tex. Sup.) 73 S.W. 1043; Telegraph & Telephone Co. v. Gotcher (Tex. Sup.) 53 S.W. 686; Telegraph Co. v. Edmondson (Tex. Sup.) 42 S.W. 549.

The mental anguish claimed here is not for failure to reach the son of the plaintiff before his death, or for loss of the privilege of attending his funeral, but for delay in the reception of money with which to bring the body to the home of the father for burial. This is a right and a privilege that can yet be exercised in every respect to the fullest gratification of the desire of the father. It would seem, therefore, that the proper measure of damages would be as insisted upon by the company. Ordinarily the damages which one is entitled to recover for delay in the reception of money is simply the interest for the period of the delay.

2. It is further assigned as error that the trial judge declined to instruct the jury when seasonably requested in proper...