Western Union Telegraph Co. v. Reid

• Decision Date: 25 March 1905
• Citation: 85 S.W. 1171,120 Ky. 231
• Parties: WESTERN UNION TELEGRAPH CO. v. REID.
• Court: Kentucky Court of Appeals

85 S.W. 1171

120 Ky. 231

WESTERN UNION TELEGRAPH CO. v. REID.

Court of Appeals of Kentucky.

March 25, 1905

Appeal from Circuit Court, Calloway County.

"To be officially reported."

Action by Jobe A. Reid against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals, Reversed.

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

Wells &amp Wells, for appellee.

HOBSON C.J.

Appellee Jobe A. Reid, resides near Dexter, in Calloway county. On the morning of July 29, 1903, between 7 and 8 o'clock, his little son, Cecil, about 15 months old, was taken violently sick with some affection of his bladder. Dr. Clayton, a physician at Dexter, was called in, and found that the child was suffering with suppressed urine. He tried to relieve the child by inserting a catheter and by local applications, but failed. About 10 o'clock Dr. Covington, another physician, was called, who also failed to relieve the child. The two doctors then suggested to Mr. Reid that he telegraph for Dr. Hart, of Murray, to come, as they did not have the instruments needed to operate on the child. The following telegram was then sent: "Dr. J. G. Hart, Murray, Ky Come to Jobe Reid's immediately. Child suppressed urine. Bring instruments. Clayton and Covington." The message was delivered to the telegraph company about 11:35 a. m., and was not delivered to Dr. Hart until 5:30 p. m. If it had been delivered promptly, he should have reached the child by 1:30 p. m.; and, by reason of the delay in sending the message, he did not reach it until 7:30 p. m., when he used the proper instruments and relieved the bladder of the child. The child died at 11 a. m. the next day. He suffered excruciatingly from 1:30 to 7:30, and this action was brought by the father charging that there was gross negligence on the part of the defendant in failing to deliver the message, and that by reason of this the child suffered great agony during the delay in relieving him, and that thereby the father was caused to suffer great inconvenience, annoyance, an mental anguish. The case was submitted to a jury, who found for the plaintiff, and fixed the damages at $500. Judgment having been entered upon the verdict, and the defendant's motion for a new trial having been overruled, the defendant appeals.

The evidence shows that the message was sent for the plaintiff and at his instance and request. The court instructed the jury that, if they found for the plaintiff, they "should find for him the actual damages he sustained on account of his own mental pain and anguish, produced by witnessing the suffering of his child, which was caused by defendant's negligence, not exceeding $1,999, the amount sued for." The propriety of this instruction is the only question we deem it necessary to consider upon the appeal. In Western Union Telegraph Company v. Henderson (Ala.) 7 South. 419, 18 Am. St. Rep. 148, the Supreme Court of Alabama held that in a case like this the father might recover for his own mental distress and anxiety in witnessing the suffering of his child. This case was followed by the Supreme Court of Texas in Gulf, etc., Telegraph Company v. Richardson, 15 S.W. 689, and by the Civil Court of Appeals of the same state in Western Union Telegraph Company v. Cavin, 70 S.W. 229. In Western Union Telegraph Company v. Robinson, 37 S.W. 545, 34 L. R. A. 431, the Supreme Court...