Western Union Telegraph Co. v. Smith

• Decision Date: 23 April 1915
• Citation: 164 Ky. 270,175 S.W. 375
• Parties: WESTERN UNION TELEGRAPH CO. v. SMITH.
• Court: Kentucky Court of Appeals

175 S.W. 375

164 Ky. 270

WESTERN UNION TELEGRAPH CO. v. SMITH.

Court of Appeals of Kentucky.

April 23, 1915

Appeal from Circuit Court, Pike County.

Action by B. F. Smith against the Western Union Telegraph Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

J. J Moore, of Pikeville, Richards & Harris, of Louisville, and Geo. H. Fearons, of New York City, for appellant.

Roscoe Vanover, of Pikeville, for appellee.

HURT J.

The appellee, B. F. Smith, was engaged in the service of the Consolidation Coal Company in the town of Jenkins, on May 9 1913. His mother and brother, M. L. Smith, resided at Cuckoo Louisa county, Va., near Fredricks Hall. The Western Union Telegraph Company had an office at Fredricks Hall, and lines extending from there to Ashland, Pikeville, Shelby, and Jenkins. It seems from the evidence in the case that a message sent over the telegraph line from Fredricks Hall to Jenkins passed through Pikeville, Ashland, and Shelby. For some reason or other there was no direct connection from Ashland to Jenkins. A message had to be sent to Shelby, and there "relayed" over another wire to Jenkins. This made a very uncertain service over the telegraph line, because the operator at Shelby, possibly on account of other duties, was hard to reach, and frequently it was necessary to call him for hours before he could be obtained to receive a message and "relay" it to Jenkins. The Consolidation Coal Company was a very large corporation, doing a great deal of business in the way of mining coal, and employed about 2,000 men, and received from 15 to 40 messages over the appellant's lines each day. A telephone line, which was owned by one Starkey, who was the manager of the office of the Western Union Telegraph office at Pikeville, extended from a room adjoining the telegraph office at Pikeville, to Jenkins, and connected with the switchboard of the telephone office owned by the Consolidation Coal Company, and situated in the office of that company at Jenkins. On account of the bad service of the telegraph line from Ashland to Jenkins, messages were frequently delayed for various lengths of time. For the purpose of avoiding these troubles and delays, the manager of the Consolidation Coal Company directed the manager of the Western Union Telegraph Company at Pikeville to take all messages which came over the wires for the Consolidation Coal Company, and all messages addressed to other persons, in care of the Consolidation Coal Company, and to telephone them from Pikeville to its office in Jenkins. The Consolidation Coal Company employed a young lady, Miss Ella Mann, to receive these messages which came over the telephone to its office in Jenkins, and it seems that it was a part of her duties to send the messages received in the care of the Consolidation Coal Company to the persons to whom they were addressed, if she could do so. She was assisted in this duty by the office boy of the Consolidation Coal Company, who assisted in delivering the messages. On the 9th day of May, 1913, M. L. Smith delivered a telegram over the telephone to the Western Union office at Fredricks Hall, to be transmitted to the appellee, at Jenkins, in the care of the Consolidation Coal Company. He paid the charge required for the transmission of the telegram by the appellant. The message was filed about 8 o'clock a. m., and was taken off the wires at Pikeville at 10:36 a. m. The operator of the appellant at Pikeville was then engaged in sending other messages, but as quickly as he had sent away the previous messages received, he transmitted the message from M. L. Smith to B. F. Smith, in care of the Consolidation Coal Company, over the telephone lines to Jenkins, where it was received by Miss Mann, whose duty it was to receive the messages for the Consolidation Coal Company, and in whose employ she was for that purpose. She received this message not later than 11:35 a. m., on the day of its transmission from Fredricks Hall. B. F. Smith, the appellee, was at that time, as he states, in one of two places, one of which was about five minutes walk from the railroad office in Jenkins, and the other about one-half mile from that place, but he is unable to say at which place he was. He furthermore stated that the officials of the Consolidation Coal Company at that time knew of his whereabouts. Miss Mann, however, did not know him, nor where he could be found, and she called upon the persons having the pay roll of the Consolidation Coal Company to learn who he was and where he was, but she failed to receive any definite information, except that some one informed her that he was then working at the bakery of the company. She delivered the message to the office boy of the company, with directions to take it to the commissary of the Consolidation Coal Company, and from there to be transmitted to the appellee at the bakery. The appellee was not working at the bakery, and no one there knew him or his whereabouts, and on the evening of the next day the message was returned undelivered, and never was actually delivered to the appellee. The message was as follows:

"Fredricks Hall, Va. May 9, 1913.

B. F. Smith, Care C. C. Co. Jenkins, Ky. Via Pikeville, Ky. Mother very ill. Come at once.

Wire answer. M. L. Smith."

Either on that day or the day following, Miss Mann informed the Western Union office at Pikeville that she had failed to deliver the message. On the 12th day of May, another message arrived from M. L. Smith to appellee, and was transmitted in the same way from Pikeville, over the telephone lines, to the office of the Consolidation Coal Company. Some one informed Miss Mann, at that time, that the appellee was in the service of the railroad campany, and she immediately sent the message to the agents of the railroad company at its office in Jenkins. In the meantime the appellee had received a letter from the physician of his mother, informing him of her dangerous condition, when he went to the railroad office to write a letter in reply, when the message was delivered to him by some person at the office of the railroad company immediately upon his arrival at the office, and he immediately sent a telegram that he would leave for his mother's home at once. At this time one passenger train left Jenkins for Pikeville at 8 o'clock a. m., and another train left at 2 o'clock p. m. If the first telegram had been delivered to appellee at any time before 2 o'clock p. m., on the day of its arrival, he could and would have taken a train at 2 p. m. and have reached the home of his mother on the 11th at 1 p. m. On account of connections, if he had left on the morning of the 10th, at 8 a. m., he would have arrived at his mother's home at 1 p. m. on the 11th, and practically at the same time as if he had left Jenkins on the 2 o'clock p. m. train. His mother had become ill on the 4th of May, and on the 8th had grown dangerously so, and the telegram was sent to the appellee on the 9th. The second telegram received by him was about 3:30 p. m. on the 12th, and he left Jenkins at 8 o'clock a. m. on the 13th, and arrived at his mother's home at 1 o'clock p. m. on the 14th. His mother had died previous to his arrival on the 13th from the illness from which she had suffered, but was not buried until after appellee's arrival, and on the 15th he was present at her funeral services. Previous to the sending of either of these messages, the appellee had directed his brother, M. L. Smith, that in the event he had necessity to send him any message by telegraph, to address it to him at Jenkins, in the care of the Consolidation Coal Company, and it was also previous to this that the Consolidation Coal Company had directed Starkey, the manager of the appellant's office at Pikeville, to send all messages for it and all messages for other persons in its care, by way of the telephone line to Miss Mann, or to Mr. Campbell, who was one of its chief clerks, or whoever might answer its telephone calls at its office at Jenkins. The appellant had nothing to do with the employment of Miss Mann, and she was in no wise in the service of the appellant. The appellee filed this suit in the Pike circuit court, in which he sought to recover of the appellant the sum of $3,000 in damages, alleging as the basis of his claim that the appellant, by its negligence, had failed to transmit or deliver the telegram to him, which was sent to him by his brother on May 9th, and for that reason be was prevented from being at the bedside of his mother previous to and at the time of her death, which he could and would have done if he had in due time received the telegram, and that for such reason he had been caused to suffer mental anguish. The appellant, by its answer, denied that it negligently and carelessly failed to either transmit or deliver the telegram, or failed at all to transmit or deliver it. It denied that it failed to use due diligence in the transmission and delivery of the message, or that appellee was deprived of the opportunity or satisfaction of being with his mother during her last illness and death, or that he was deprived of that opportunity by any negligence of the appellant, or that he was caused to suffer mental anguish or pain. By a second paragraph of the answer the appellant pleaded that the message was addressed to...