Western Union Telegraph Co. v. Witt

• Decision Date: 05 June 1908
• Citation: 110 S.W. 889
• Parties: WESTERN UNION TELEGRAPH CO. v. WITT.
• Court: Kentucky Court of Appeals

110 S.W. 889

WESTERN UNION TELEGRAPH CO. v. WITT.

Court of Appeals of Kentucky.

June 5, 1908

Appeal from Circuit Court, Rockcastle County.

"Not to be officially reported."

Action by John A. Witt against the Western Union Telegraph Company for delay in delivering telegram. From a judgment for plaintiff, defendant appeals. Affirmed.

Richards & Quarles and Geo. H. Fearons, for appellant.

C. C Williams, R. L. Pope, and T. Z. Morrow, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment upon a verdict rendered against the appellant company for $400 in damages. The action in which the recovery was had was based upon the ground that the appellant company negligently failed to transmit and deliver to appellee the following telegram "Williamsburg, Jany. 26, 1905. To John A. Witt Livingston, Your sister, Martha Thompson, died this morning. Come first train. Marshall." Williamsburg and Livingston are on the line of the Louisville & Nashville Railroad, in Kentucky, and about 60 miles apart. The telegram in question was delivered to the operator at Williamsburg about 4:30 p. m., and in the usual and ordinary course of business should have reached Livingston before 6 o'clock on the same evening and been delivered to appellee, who lived in the town of Livingston, within a short time after its receipt. It was not, in fact, delivered until about 10 o'clock on the morning of the 27th. The delay in its transmission and delivery is not accounted for by the appellant company, so that, considering the time of its delivery at the place of transmission and the time of its receipt at the point of destination and the distance between the two places, it may be assumed that the company was guilty of negligence in failing to send the telegram in seasonable time, or in failing to deliver it with reasonable promptness after it reached Livingston. If the telegram had been delivered to Witt on the 26th, he could have left Livingston on a train that passed through there about 1 o'clock on the morning of the 27th, and have reached Williamsburg about 4 o'clock that morning, and Witt testifies that he would have taken that train. The next train leaving Livingston for Williamsburg departed about 1 o'clock p. m. on the 27th, arriving at Williamsburg at 4 o'clock p. m. Upon receipt of the telegram, Witt, without reading it carefully, supposed that it had been sent that morning, and went to the depot for the purpose of taking the 1 o'clock train for Williamsburg; but, after arriving at the depot about 11 o'clock and again reading the telegram, he discovered that it was dated on the 26th and not the 27th, as his first casual reading induced him to believe, and he did not go to Williamsburg. His sister was buried on the morning of the 27th about 11 o'clock. There was no train leaving Livingston on the morning of the 27th after the receipt of the telegram that appellant could have taken to Williamsburg in time to attend the funeral of his sister.

The company asks a reversal on two grounds. It is first insisted that, upon the receipt of the telegram, appellee should have telegraphed the family of his sister that he could not reach Williamsburg until that afternoon, and have asked them to delay the funeral until his arrival, and that, in failing to take this action, he was guilty of such contributory neglect as would defeat a recovery. It is next insisted that the action, which was not instituted until more than one year after January 27th, was barred by the statute of limitations; the appellant's contention being that section 2516 of the Kentucky Statutes of 1903 fixes the time within which an action of this character may be brought. That section reads as follows: "An action for an injury to the person of the plaintiff, or his wife, child, ward, apprentice, or servant, or for injuries to person, *** by any company or corporation *** shall be commenced within one year next after the cause of action accrued, and not thereafter." It is upon this statute that the appellant chiefly depends to exonerate it from liability to the appellee.

For the appellee it is insisted that this is an action upon a contract, and the period in which it must be brought is controlled by section 2515 of the Kentucky Statutes of 1903, providing that "an action upon a contract *** shall be commenced within five years next after the cause of action accrued." Telegraph companies are common carriers.

They are engaged in a public service. In consideration of certain fees exacted, they agree to transmit and deliver messages within a reasonable time. Whenever a person delivers to a telegraph company a message to be sent to the addressee, and pays the stipulated price, a contract is entered into between the sender and the company by which...