Western Union Telegraph Co. v. Baker

• Decision Date: 15 November 1916
• Citation: Western Union Telegraph Co. v. Baker, 172 Ky. 215, 189 S.W. 22 (Ky. Ct. App. 1916)
• Parties: WESTERN UNION TELEGRAPH CO. v. BAKER.
• Court: Kentucky Court of Appeals

189 S.W. 22

172 Ky. 215

WESTERN UNION TELEGRAPH CO. v. BAKER.

Court of Appeals of Kentucky.

November 15, 1916

Appeal from Circuit Court, Breathitt County.

Action by D. C. Baker against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Richards & Harris, of Louisville, O. H. Pollard and Chester Gourley both of Jackson, and A. T. Benedict, of New York City, for appellant.

E. C Hyden and McGuire & McGuire, all of Jackson, for appellee.

SETTLE J.

The appellee, D. C. Baker, recovered in the court below of the appellant, Western Union Telegraph Company, a verdict and judgment for $500 by way of damages claimed on account of its alleged negligence in failing to deliver a telegram informing him of his mother's death and which, if delivered within a reasonable time would have enabled him, as further alleged to be present at her funeral and burial. Appellant's dissatisfaction with the judgment led to the present appeal.

It appears from the record that appellant's mother died in Indianapolis, Ind., July 19, 1910, and that her remains were shipped by rail to the town of Berea, Ky. where they arrived about noon, July 20, 1910. The funeral occurred at 2 p. m. on the 20th in Berea, at the residence of her son J. K. Baker and on the 21st of July the remains were carried in a hearse to the town of McKee, in Jackson county, 25 miles from Berea, for burial. The burial took place at McKee on the 21st, about or just before dark. On July 19th, the day before the mother's remains reached Berea, J. K. Baker, her son and appellee's brother, filed with one Bower, appellant's operator and the station agent of the Louisville & Nashville Railroad Company at Berea, the following telegram for transmission to appellee at his home in the city of Jackson, Breathitt county: "Come to Berea at once your mother is dead." As appellant does not own or operate telegraph lines between Berea and Jackson, this message had to be sent from Berea to Lexington, and from that city over a line of the Postal Telegraph Company to Jackson. Appellant's operator, Bower, testified that the above message was not received by him until 6:12 o'clock, p. m. July 19th; that he turned it over to the assistant dispatcher, Stickrod, by whom it was transmitted to Lexington, to be from there forwarded to Jackson. J. K. Baker, the sender of this telegram, was quite indefinite as to the time of its delivery to Bower, saying in one part of his testimony that he was of the belief that it was handed him about 5 o'clock p. m. and later between 5 and 6. It appears, however, from the testimony of J. E. Stivers, then and now the operator of the Postal Telegraph Company at Jackson, that the above message was never received by him or at his office, and also from his testimony, as well as that of the appellee, that the telegram, if received in due course, could not have been delivered to the latter, because he was not in Jackson after 6 o'clock on the morning of July 19th until after the 22d of July; that is to say, appellee left Jackson at 6 o'clock a. m. July 19th as a brakeman on a freight train for Lexington, which train did not reach Lexington until 6 o'clock p. m. of that day. It further appears from the testimony of appellant's operator Bower and its operator at Lexington that by a custom of the Postal Telegraph Company, its office at Jackson was opened at 7 a. m. and closed at 6 o'clock p. m. each day. Consequently, messages attempted to be sent to that office after 6 p. m. were not received, or, if received, not delivered, until after 7 o'clock the following morning.

While appellee's evidence may be said to conclusively show that the message left by J. K. Baker with appellant's operator at Berea to be sent appellee was never received at the office of the Postal Telegraph Company at Jackson, it nevertheless fails to show that if delivered at the Jackson office, it would or could have been delivered to appellee in time for him to have reached Berea for his mother's funeral. Indeed, it appears that, if the message had reached Jackson and appellee had been at his home there on the night of July 19th, the only train on which he could have gone to Berea on the 20th in time for his mother's funeral left at 7 a. m. that day, the hour for opening the Postal Telegraph office at Jackson, which would not have allowed the delivery to him of the message in time for him to take the train.

When appellee failed to reach Berea July 20th for his mother's funeral, his brother, J. K. Baker, again saw appellant's agent, Bower, informed him of appellee's nonarrival, and asked him if he would not make another effort to find him. This was at 1:54 o'clock p. m. July 20th. Bower said he would do so, and thereupon sent the following telegram to P. F. Kesheimer, the Lexington & Eastern Railway Company's master of trains at Lexington:

"Please advise Mr. D. C. Baker who is either a brakeman or conductor on your road that his mother died in Indianapolis. Remains reached Berea today and will leave for McKee at five o'clock Thursday for burial Want him to come to Berea tonight Request him to advise if coming."

Kesheimer was out of Lexington on some one of the Lexington & Eastern's lines when this telegram reached his office at Lexington. It was, however, received by a clerk in the office, who, together with the dispatcher, in the absence of Kesheimer, attempted to ascertain the whereabouts of appellee, who was in Lexington the whole of the 20th, and give him the message, but they were unable to find him. Kesheimer, according to his testimony, returned to Lexington between six and seven o'clock the evening of the 20th, made immediate effort to locate appellee, found that he was out in the country and that the persons with whom he was taking. dinner had no telephone. However, he said that about the time he made these inquiries, that is between six and seven o'clock, p. m., appellee walked into his office and Kesheimer then handed him the telegram.

In giving his...