West v. Western Union Tel. Co.

• Decision Date: 07 April 1888
• Citation: 17 P. 807,39 Kan. 93
• Parties: GEORGE WEST v. THE WESTERN UNION TELEGRAPH COMPANY
• Court: Kansas Supreme Court

17 P. 807

39 Kan. 93

GEORGE WEST v. THE WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Kansas

April 7, 1888

[Copyrighted Material Omitted]

Error from Shawnee District Court.

ON November 12, 1885, George West brought this action against The Western Union Telegraph Company, and alleged:

"That the defendant, the Western Union Telegraph Company, was, at the time of the grievances hereinafter stated, and is now, a corporation duly organized and incorporated under the laws of the state of New York, and as such was and is doing business in the state of Kansas, and was and is owning and operating a telegraph line in the state of Kansas, between the city of Topeka, in and through Shawnee county, and the city of Delphos, Ottawa county, in the state of Kansas, and was then and is now engaged as a common carrier for hire, in sending messages for the public, by means of such telegraph between said points.

"Plaintiff further states, that on or about the 14th day of September 1885, he was temporarily at the city of Delphos, in the state of Kansas, and that on or about said date the plaintiff, by his agent, John G. West, made and entered into a contract with defendant, its agents and employes, at the city of Topeka, which, in consideration of the sum of forty cents to it paid by plaintiff, undertook, promised and agreed to transmit and deliver, without unnecessary delay, a certain telegraphic message to plaintiff, at the city of Delphos state of Kansas, where plaintiff was temporarily residing as aforesaid, which message was in words and figures following, to wit:

"'NORTH TOPEKA, KANSAS, September 14, 1885--To George West, Delphos, Kansas, care of post office: Uncle Sam died last night; funeral Wednesday JOHN G. WEST.'

"That plaintiff, by his agent as aforesaid, then and there paid defendant forty cents, the regular consideration and price by it charged for transmitting and delivering said message from the city of Topeka to the city of Delphos in the state of Kansas, which consideration was then and there accepted by defendant, and for which it agreed, without unnecessary delay as aforesaid, to transmit said message to plaintiff at the city of Delphos as aforesaid, and deliver the same to plaintiff in person, or in care of the post office, at said city of Delphos; that although defendant well knew the whereabouts of plaintiff, and the post office, in care of which said message was sent at said city of Delphos, state of Kansas, and could and should have delivered the same to plaintiff as aforesaid on the same day it was sent, yet defendant, its agents and employes, maliciously and in gross neglect of duty failed and refused to deliver the same to plaintiff, or to the post office as aforesaid, within a reasonable time, but grossly and maliciously neglected and failed to deliver said message to plaintiff when called for by him in person, and never delivered the same to plaintiff or in care of the said post office as by its contract it had obligated itself to and was bound to do.

"Plaintiff further avers, that at the time of the said grievances he was seventy-three years of age, and had an only brother, Samuel C West, who was seventy-six years of age, and who resided in Philadelphia, Pennsylvania, and that said telegram was to notify plaintiff of the death of his said brother Samuel, which was then and there to the defendant, its agents and employes, well known, and whose funeral the plaintiff desired to and would have attended, but for the gross negligence of defendant, its agents and employes, to deliver said message to plaintiff, as by the contract it obligated and bound itself to do; that the funeral of the said Samuel C. West, deceased, was deferred so that plaintiff could attend the same, and which the plaintiff intended to and would have done, if said telegram had been delivered within a reasonable time, in accordance with said contract, but in consequence of the failure and gross and malicious negligence of the defendant, its agents and employes, to deliver said dispatch, as by its said contract it had obligated itself, and was bound to do, the plaintiff was deprived of the satisfaction and pleasure of seeing his said brother, and being present at his funeral, and because of which plaintiff suffered great and irreparable injury, distress and mental pain and anguish, and which was great and overpowering, and was due and caused by the failure and gross and malicious neglect of the defendant, its agents and employes, to comply with, and in breach of, its said contract. And thereby also, because of the failure of defendant to transmit and deliver said telegram to plaintiff, as it was bound to do, the plaintiff was forced to and did then and there lay out and expend large sums of money, and performed labor, to wit, ten dollars, in and about making search for, and attempting to find said telegram, caused by the failure and gross and malicious neglect of the defendant, its agents and employes, to comply with, and in breach of, its said contract, and by its negligence.

"Wherefore, the said damage sustained, as aforesaid, by reason of the breach of contract and gross negligence of the defendant, through its agents and employes, was and is in the sum of ten thousand dollars, for which plaintiff demands judgment, costs, and other relief."

On December 8, 1885, the telegraph company filed its answer, containing a general denial. On September 30, 1886, trial had before the court, with a jury. After George West had testified, and also produced the evidence of John West, George W. Strickler, Delia A Knowles, James Clark, Lizzie Strickler, Levi Reynolds, and Joseph McDonough, the telegraph company demurred to all of the testimony, upon the ground that it did not prove, or tend to prove, a cause of action in favor of the plaintiff and against the defendant After argument, the demurrer was sustained by the court and the case taken from the jury. Thereupon judgment was rendered against the plaintiff and in favor of defendant for all the costs The plaintiff subsequently filed his motion for a new trial, containing all the statutory grounds, which was overruled He excepted, and brings his case here.

Judgment reversed.

Jetmore & Son, for plaintiff in error.

J. B. Johnson, for defendant in error.

HORTON C. J. All...