Western Union Tel. Co. v. Van Cleave

• Decision Date: 03 January 1900
• Citation: 107 Ky. 464,54 S.W. 827
• Parties: WESTERN UNION TEL. CO. v. VAN CLEAVE. [1]
• Court: Kentucky Court of Appeals

54 S.W. 827

107 Ky. 464

WESTERN UNION TEL. CO. v. VAN CLEAVE. ^[1]

Court of Appeals of Kentucky.

January 3, 1900

Appeal from circuit court, Marion county.

"To be officially reported."

Action by A. Van Cleave against the Western Union Telegraph Company to recover damages for failure to deliver a telegram. Judgment for plaintiff, and defendant appeals. Reversed.

Wm Lindsay, W. J. Lisle, and Richards, Weissinger & Baskin, for appellant.

Russell & Son and Finley Shuck, for appellee.

HAZELRIGG C.J.

The appellee recovered judgment of appellant for the sum of $1,000 for mental anguish caused by his inability to attend his brother's funeral, and which nonattendance, he avers, was owing to the negligent failure of the appellant to deliver to him in a reasonable time a telegram announcing the death of that relative. The message was sent from the appellant's office at Lake City, Mo., at about 9 o'clock on the evening of January 1, 1894, and reached Lebanon, Ky. the place of its destination, at 11:44 o'clock on the same evening. It was not delivered to the appellee until next morning at about 8 o'clock, and too late for the first train out that morning. It may be assumed, for the purposes of the case that the failure of appellee to get the train was the sole cause of his not attending the funeral. The appellant resists recovery on the grounds: First, that mental anguish accompanied by no physical injury, gives no cause of action; second, that the message was a "night" message, and, according to the terms indorsed on the blank on which it was written, was to be delivered "not earlier than the morning of the next ensuing business day"; and, third, that its office at Lebanon during the night was in charge of an operator, who was also the agent and night operator for the railroad company, and the rules of his employment forbid his leaving the office at night for any purpose; that a delivery boy was kept only from 6 o'clock a. m. until 6 o'clock p. m., because the business did not justify night delivery. Other minor defenses were presented, but, as we shall see, they need not be considered.

The ground first suggested has furnished the occasion for much controversy, and much conflict of authority. It is probably in accordance with the views of a majority of the state courts that mental anguish and injured feelings alone, and unaccompanied with physical injury, do not furnish ground for recovery. But in this state the rule has been announced otherwise. Chapman v. Telegraph Co. (1890) 90 Ky 265, 13 S.W. 880. And so likewise a recovery in this class of cases can be had under the decisions of the states of Texas, Alabama, Indiana, Iowa, North Carolina, and Tennessee. It may be admitted that there are difficulties in the way of an exact measurement of such damages, but it does not seem to us that this is a sufficient reason why a negligent public carrier should escape with merely nominal damages. The same difficulty of accurately measuring such damages arises in cases of slander, breach of marriage contract, and in cases where mental suffering is accompanied with physical pain. If, as argued, the law does not deal generally with the feelings and emotions, it may be answered that here the parties themselves have contracted with respect to those very things, or, at least, have contracted with respect to those things which naturally affect the feelings and emotions. For the purpose of having him attend, a message is sent to a son, informing him of his mother's death, and the date of her funeral and burial. It must be supposed that a failure to deliver such a message will cause mental suffering; and this suffering is, therefore, a consequence or result within the contemplation of the parties. This is true whether the carrier is sued on its contract or because of its failure to perform a public duty as a common...