Western Union Telegraph Co. v. Melvin

• Decision Date: 08 May 1917
• Citation: 194 S.W. 563,175 Ky. 480
• Parties: WESTERN UNION TELEGRAPH CO. v. MELVIN.
• Court: Kentucky Court of Appeals

194 S.W. 563

175 Ky. 480

WESTERN UNION TELEGRAPH CO. v. MELVIN.

Court of Appeals of Kentucky.

May 8, 1917

Appeal from Circuit Court, Johnson County.

Action by R. L. Melvin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. J Moore, of Pikeville, and Albert T. Benedict, of New York City, for appellant.

D. J Wheeler and H. S. Howes, both of Paintsville, for appellee.

THOMAS J.

The plaintiff (appellee) recovered a judgment against the defendant (appellant) in the court below for the sum of $350 for damages alleged to have been suffered by him because of the negligent failure of the defendant, on October 28, 1914 to promptly transmit $15 from Paintsville, Ky. to Alger Ohio, to the plaintiff's daughter, Mrs. Goldie Lemasters, pursuant to a contract that day entered into between plaintiff and defendant. The record has been filed in this court with a motion for an appeal. Among the errors relied upon are that the court erred in refusing to instruct the jury to return a verdict for the defendant, that the court improperly instructed the jury, that the verdict is contrary to the evidence, and that the court erred in overruling the motion made by the defendant for a judgment in its favor notwithstanding the verdict. We will notice such of these in the course of the opinion as we deem necessary to a determination of the case.

The facts are that the plaintiff's daughter had given birth to a child on October 16, 1914, and on the 21st day of that month her husband telegraphed the plaintiff to come at once. He did not go, and on the 28th his daughter wired him to send her sufficient money to come to his home, as she was sick and wanted to make that trip. About 3 o'clock in the afternoon of that day, he made the contract with defendant, and in consideration of 65 cents paid to it at the time it undertook to transmit by wire from Paintsville, Ky. to the home of the daughter at Alger, Ohio, the sum of $15, and according to plaintiff's contention, supported by evidence, the agent of the defendant at Paintsville agreed to do this within the space of one hour. The defendant had no money transfer office at Alger, Ohio, but did have one in the city of Lima, Ohio, not far therefrom, and within an hour after it received the money from the plaintiff and agreed to transmit it, it notified its office at Lima, Ohio, but that was after banking hours. By 9 o'clock, or directly thereafter, on the morning of the 29th of October, a bank at Alger, Ohio, was directed to pay to the daughter, without identification, the sum of $15. The agent of the defendant at the latter place was also notified of the transaction, but neither the bank at that place nor the agent of defendant could locate the daughter, as she had no telephone in her home and seems to have been a stranger in that place; but a postal card was put into the mail, notifying her to call at the bank and get the money. However, it appears that she did not receive the information until November 1st, at which time she telegraphed the plaintiff at Paintsville, Ky.:

"Everything understood; will get money at once. Will be home as soon as possible.

Goldie."

She arrived at the home of plaintiff on November 3d, and, claiming that defendant had violated its contract and that he had suffered great mental pain and anguish as a consequence thereof, the plaintiff filed this suit to recover the sum of $499, with the result indicated. The answer admitted the contract, except it denied that there was any agreement to transmit the money within any specified time. It denied negligence in its transmission and the alleged mental anguish which plaintiff claims to have suffered, and put in issue the damages sought to be recovered.

There is no allegation in the petition that the daughter either could or would have come to the plaintiff's home if she had immediately received the money, nor is there any statement in the petition that she was unable to get the money with which to make the trip from any other source. Because of the absence of such allegations it is insisted that the demurrer filed to the petition should have been sustained. Under the rule laid down in the cases from this court of Howard v. Western Union Telegraph Co., 119 Ky. 625, 84 S.W. 764, 86 S.W. 982, 27 Ky. Law Rep. 244, 7 Ann. Cas. 1065, Western Union Telegraph Co. v. Sisson, 155 Ky. 624, 160 S.W. 168, and Western Union Telegraph Co. v. Baker, 172 Ky. 215, 189 S.W. 22, the petition should have contained such allegations, for the very foundation of the action is that because of defendant's alleged negligence the plaintiff was deprived of the pleasure and gratification of his daughter visiting his home. If, notwithstanding the contract may have been complied with in every particular, such visit could not have been made, defendant's negligence in failing to do so did not produce the condition out of which the alleged cause of action arose. Likewise, if the defendant had failed to comply with its contract; but the daughter could have provided herself with the means to make the trip, the failure of which is complained of, but she declined to do so, the defendant's negligence could not be said to be the producing cause of such failure.

According to our view, there is still a more serious objection to the judgment. As stated, the sole ground alleged for recovery is the alleged mental anguish which plaintiff suffered because of his daughter not promptly receiving the money which defendant had agreed to send. At common law, and in a majority of the states at the present time, compensatory damages for mental anguish unaccompanied with physical injury is not an element of damages for breach of contract. 37 Cyc. 1775, and authorities therein cited. Some of the states, however, including Kentucky, have departed from that rule, and permit compensatory damages for mental anguish for breach of a contract to transmit a telegraphic message whereby one is deprived from being present at the bedside of a near relative before death, or from attending the funeral after death, which doctrine was first promulgated as a departure from the above common-law rule by the Supreme Court of Texas in 1881. 37 Cyc. 1776. It was adopted by this court in the case of Chapman v. Western Union Telegraph Co., 90 Ky. 265, 13 S.W. 880, 12 Ky. Law Rep. 265, and has been consistently followed in all subsequent cases. This court has pressed the departure a step farther, as will be seen from the cases of Postal Telegraph Company v. Terrell, 124 Ky. 822, 100 S.W. 292, 14 L. R. A. (N. S.) 927, and Thurman v. Western Union Telegraph Co., 127 Ky. 137, 105 S.W. 155, 14 L. R. A. (N. S.) 499.

In the Terrell Case the plaintiff's husband had wired the father of his wife in Memphis to meet the latter at a depot in that city where a train arrived in the nighttime. She had two small children with her, and on account of the train being a couple of hours late she did not arrive until 2 o'clock a. m. The telegram was not sent in time for the father to receive it, so as to enable him to meet the train. The wife was very much worried, frightened, and mentally disturbed, and under the circumstances this court held that her mental condition was the natural consequence of the failure of her father to meet her, which was the proximate result of the negligence of defendant, and sustained her cause of action against the telegraph company to recover damages for the injuries complained of. After reviewing many cases from this and other courts, and summing up its final conclusions, the court in its opinion in that case said:

"In the case at bar the telegram apprised the defendant that mental suffering might reasonably be anticipated from the failure to deliver the telegram, and to allow mental

...