Western Union Tel. Co. v. Teague

• Decision Date: 30 September 1909
• Citation: 134 Ky. 601
• Parties: Western Union Tel. Co. v. Teague
• Court: Kentucky Court of Appeals

134 Ky. 601

Western Union Tel. Co. v. Teague

Court of Appeals of Kentucky.

September 30, 1909.

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

THOS. R. GORDON, Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

RICHARDS & RONALD and A. B. BENSINGER for appellant.

CAMPBELL & YOUNG and O'NEAL & O'NEAL for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

Mrs. Nicie McCoy died on the afternoon of September 25, 1907, in the city of Louisville. About an hour after her death her son, A. H. C. McCoy, delivered to an agent and operator of the appellant, Western Union Telegraph Company, at its chief office in the city of Louisville, for transmission and delivery to the appellee, Mrs. Susan Teague, a sister of deceased, then residing at New Market, Ala., the following telegram:

"Mrs. Susan Teague, New Market, Alabama. Nicie passed away today. Interment in Huntsville Monday afternoon. Will pass through New Market at noon. Relatives and friends invited. Notify them. A. H. C. McCoy."

The sender of the telegram prepaid to appellant's Louisville agent the charges for its transmission and delivery. The telegram was never delivered to appellee, and she did not attend the burial of deceased, or receive information of her death, or the place of her burial, in time to do so. Thereafter appellee instituted this action against appellant in the court below, claiming damages for the mental suffering alleged to have been caused her by the nondelivery of the telegram; it being, in substance, alleged in the petition that the failure of appellant to deliver it prevented her from being advised of the death and of the time and place of her sister's burial, and that, if the telegram had been delivered according to the contract and undertaking of appellant with the sender, it would have notified her of the death of her sister and of the time and place of the latter's interment in time for her to have been present, and that she could and would have done so.

The averments of the petition were traversed by appellant's answer and the trial resulted in a verdict and judgment in appellee's behalf for $500 damages. Appellant complains of the judgment and of the refusal of the circuit court to grant it a new trial.

By the evidence introduced in her behalf appellee sustained every averment of her petition essential to a recovery. That is to say, it established the facts: (1) That the telegram was delivered by the sender to appellant's agent for transmission and delivery to appellee on the afternoon of Saturday, September 25, 1907, and the charge therefor then paid. (2) That it was never received by appellee, but should have been received by her on the following morning (Sunday), or in any event by noon Monday, September 27, the day of the sister's burial at Huntsville, Ala., and that, if received as late as noon Monday, appellee was able to go and could have gone on the train containing her sister's remains from New Market to Huntsville, and thereby have attended the burial, and would have done so. (3) That the nondelivery of the telegram prevented appellee from receiving information of her sister's death, or of the time and place of her burial, in time to attend the burial, thereby causing her mental anguish and sorrow. Appellant did not attempt to prove a delivery of the telegram to appellee; and, though its Louisville agent and operator admitted receiving the telegram from the sender September 25th, and the payment by the latter of the cost of its transmission, he made no explanation as to its nondelivery further than to say that it reached Atlanta, Ga., on its way to appellee, but offered no excuse for the failure of appellant's agent in that city to forward it to appellee at New Market, Ala.

It appears from the evidence that New Market is 18 miles from Huntsville, Ala., and that the train upon which Mrs. McCoy's remains were carried to Huntsville passed New Market at 1:30 p. m. Monday, September 27, 1907, the time the telegram in question indicated it would do so; that about an hour was required for the train to run from New Market to Huntsville, and that it arrived at the latter place about 2:30 p. m., and it further appears from the evidence that the interment of the body of Mrs. McCoy at Huntsville occurred at 3 p. m. It was also shown by the testimony of appellee, and at least two of her relatives residing at New Market, that she was a resident of and well known in New Market; that she was at her home on Saturday, Sunday, and Monday, September 25th, 26th, and 27th, and that appellant has, and then had, a telegraph office in New Market. She and the relations in question also testified that she nor they did not hear of the death of Mrs. McCoy before the arrival at New Market of the train containing the remains of the latter; that, upon the arrival there of the train, a son of the deceased, who alighted from it to the railroad platform, expecting to meet appellee and other relatives of...