Western Union Tel. Co. v. Parsons

• Decision Date: 18 March 1903
• Citation: 72 S.W. 800
• Parties: WESTERN UNION TELEGRAPH CO. v. PARSONS.
• Court: Kentucky Court of Appeals

72 S.W. 800

WESTERN UNION TELEGRAPH CO. v. PARSONS.

Court of Appeals of Kentucky.

March 18, 1903

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by Mandy Parsons against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Richards & Richards and O. H. & R. B. Waddle, for appellant.

W. S Pryor and V. P. Smith, for appellee.

HOBSON J.

Plaintiff Mandy Parsons, who resides at Greenwood, Ky. was the mother of George Parsons, who resided at Jellico, Tenn. George Parsons died on the evening of May 23, 1901, about 9 o'clock. On the next morning, between 6 and 7 o'clock, his wife, Julia Parsons, sent the following telegram to his mother:

"Jellico Tenn., May 24, 1901.

"Mandy Parsons, Greenwood, Ky.

"George died yesterday. Body can't be shipped. Burial at Jellico. Julia Parsons."

The distance from Jellico to Greenwood is only about 22 miles; but the message was sent to Louisville from Jellico, and forwarded from there. It did not reach Jellico until about 8:30 a. m. on the morning of May 25th, and was not delivered to Mrs. Parsons until 10 o'clock that morning. She lived in Greenwood, and, according to her testimony, about 200 yards from the telegraph office, or, according to the testimony of the agent, about 500 yards from it. In the meantime, however, Julia Parsons having heard nothing from the mother, and the body being in bad condition, buried her husband about 4 o'clock on the evening of May 24th. Mrs. Mandy Parsons filed this suit to recover damages for the neglect in the delivery of the message. It was agreed on the trial that if the message had been delivered promptly she could not have taken any train that would have carried her to Jellico by 4 o'clock that evening, the time when the funeral took place. But it was also shown that there was a fair road between the two places, and that on her last visit to her son she had returned home by this road by private conveyance. It was also shown that the reason that the burial took place at 4 o'clock on May 24th was that Mrs. Parsons had not come; they had not heard from her; the condition of the corpse was getting bad; but they could have delayed until the next day, and would have done so but for the failure to hear anything from her. Mrs. Parsons testified that when she got the message she did not observe at first that it was dated the day before, and she began getting ready, evidently with a view of taking the train, but when she saw the date of the message thought it was too late to go. If she had gone on the next train she would have reached Jellico some time that night. The court instructed the jury as follows: "If you believe from the evidence that the message read in evidence was delivered to and accepted by the defendant at Jellico, Tenn., on May 24, 1901, at about 6:30 a. m., which it undertook to transmit and deliver to the plaintiff at Greenwood, Ky. and that said message was not transmitted and delivered to the plaintiff until about 10 o'clock a. m. on May 25, 1901, and if by the delay of the defendant in transmitting and delivering said message plaintiff was prevented from being present at the funeral or burial of her son, you will find for the plaintiff such a sum in damages as you may believe from the evidence will fairly compensate her for the mental anguish to her, if any, caused by the failure to deliver the message, provided your finding will not exceed $1,500; and, unless you so believe from the evidence, you will find for the defendant."

It is objected that the instruction assumed the defendant's negligence; that it submits an issue not raised by the pleadings; and that it was erroneous in submitting to the jury whether the plaintiff by the delay was prevented from being present at the funeral or burial of her son. It was the duty of the defendant to transmit and deliver the message in a reasonable time. If it failed to do so, prima facie it was guilty of negligence. If the delay was due to the act of God or the fault of the sender of the message, or other matters beyond its control, the burden was on the defendant to show these things, and when it failed to do so the court properly told the jury that, if there was a delay of something like 27 hours in transmitting the message, the defendant was liable, for such a delay is unreasonable.

It is urged that the...