October 1, 2012

Lee v. Western Union Teleg. Co., Pulaski, 1908

Lee v. Western Union Teleg. Co.

COURT OF APPEALS OF KENTUCKY

130 Ky. 202; 113 S.W. 55; 1908 Ky. LEXIS 245

November 5, 1908, Decided

PRIOR HISTORY:  [***1]  Appeal from Pulaski Circuit Court. M. L. JARVIS, Circuit Judge. Judgment for defendant. Plaintiff appeals.--Affirmed.

DISPOSITION: Judgment affirmed.

COUNSEL: VIRGIL P. SMITH for appellant.

1. In the case of Randall v. Western Union Tel. Co., Vol. 32 Ky. L. Rep. this court said. "This court is committed to the doctrine that a Telegraph Company is answerable in damages for mental suffering caused by its failure to deliver a social message by reason of which the person addressed is prevented from attending at the bedside or the funeral of a near relative."

2. We submit that an aunt if a near relative and a recovery should be had under the allegations of the petition, which are taken as true, preventing appellant from being at the funeral of his aunt.

O. H. WADDLE & Son for appellee.

GEO. H. FEARINS of counsel.

POINTS AND AUTHORITIES.

The doctrine is now thoroughly established in Kentucky that a recovery for mental anguish against a telegraph company for failure to deliver a telegram that prevents the sender or person addressed, from attending at the bedside, at the death of or at the funeral of a relative, will be restricted to those of the first degree of relationship.  [***2]  (Western Union Tel. Co. v. Steenbergen, 107 Ky. 469; Robinson v. Western Union Tel. Co., 24 Ky. L. Rep. 52; Denham v. Western Union Tel. Co., 27 Ky. L. Rep. 999; Randall v. Western Union Tel. Co., 32 Ky. L. Rep. 859.) 

JUDGES: JUDGE CARROLL. 

OPINION BY: CARROLL 

OPINION

 [**55]   [*203]  OPINION OF THE COURT BY JUDGE CARROLL--Affirming.

This action was brought by the appellant to recover damages from the appellee company, growing out of its failure to deliver within a reasonable time a message notifying him that his aunt was dead. A demurrer was sustained to the petition upon the ground that the relationship between the deceased and the addressee in the telegram was not within the degree that entitled him to recover damages for mental anguish in being prevented by the negligence of the company from attending the burial and funeral of his aunt.

The question involved in this case has heretofore been considered by this court. In Denham v. Western Union Tel. Co., 87 S.W. 788, 27 Ky. L. Rep. 999, a recovery was sought by an aunt because of the failure of the  [**56]  company to deliver a telegram to the parents of her nephew, notifying them of his injury and death, by reason of which [***3]  she was compelled to keep the  [*204]  body two days and nights, during which time she suffered great mental anguish. In rejecting her right to maintain the action, the court said: "Even if such an action could have been maintained for mental anguish by a near-degree relative on the averments on the petition, still the appellant is not entitled to recover, because she did not sustain that relationship." In Robinson v. Western Union Tel. Co., 68 S.W. 656, 24 Ky. L. Rep. 452, 57 L. R. A. 611, it is said: "This court is committed to the doctrine that a telegraph company is answerable in damages for mental suffering caused by its failure to deliver a social message, by reason of which the sender or person addressed is prevented from attending at the bedside, at the death, or at the funeral of a near relative. We have not applied the doctrine further than to the class of cases referred to, and then the liability has been restricted to those of the first degree of relationship." In Western Union Telegraph Company v. Steenbergen, 107 Ky. 469, 54 S.W. 829, 21 Ky. L. Rep. 1289, the delayed telegram was sent by the father-in-law, Steenbergen, announcing the death [***4]  of the addressee's mother-in-law; but the court held that the degree of relationship was too remote to authorize a recovery, saying: "It is insisted for the company that, even in the courts of those States where mental anguish can be made the basis of a recovery, the rule has never been extended beyond the nearest degree of blood relationship. This contention seems to be supported by the authorities. Certainly no legal presumption of such affection arises as will warrant a recovery for mental anguish, except in cases of such relationship." In Western Union Telegraph Company v. Van Cleave, 107 Ky. 464, 22 Ky. L. Rep. 53, 54 S.W. 827, 92 Am. St. Rep. 366, a  [*205]  recovery was held allowable where the relationship of brothers existed, and so in Western Union Telegraph Company v. Lacer, 122 Ky. 839, 29 Ky. L. Rep. 378, 93 S.W. 34, 5 L. R. A. (N. S.) 751, 121 Am. St. Rep. 502, and Western Union Telegraph Company v. Caldwell, 126 Ky. 42, 102 S.W. 840, 31 Ky. L. Rep. 497, 12 L. R. A. (N. S.) 748. In Western Union Telegraph Co. v. Fisher, 107 Ky. 830, 21 Ky. L. Rep. 1293, 54 S.W. 830, a father was held entitled to recover for the delay [***5]  in sending a telegram announcing the illness of his child. To the same effect is Thomas v. Western Union Telegraph Company, 120 Ky. 194, 25 Ky. L. Rep. 569, 85 S.W. 760, and Taylor v. Western Union Telegraph Company, 101 S.W. 969, 31 Ky. L. Rep. 240.

In the recent case of Randall v. Western Union Telegraph Company, 107 S.W. 235, 32 Ky. L. Rep. 859, the principle announced in the foregoing cases was approved. So that it may be considered as the settled doctrine in this State that in cases of this character, where damages are sought for the failure to send or deliver a telegram announcing the sickness or death of a relative, a recovery can not be had unless the relationship between the parties is that of parent and child, husband and wife, sister and brother, or grandparent and grandchild. This rule may be considered, and indeed it is, arbitrary; but the peculiar and speculative nature of the doctrine upon which the right of recovery rests in cases of this character makes it necessary that there should be limitations placed upon it. It must be conceded that the restrictions we have placed on the right of recovery are not satisfactory. Often persons [***6]  further removed in kinship and relationship than those we have enumerated would suffer greater mental anguish at being prevented  [*206] from attending the bedside of a sick or burial of a deceased friend or relative than would a sister or brother. But, as the line must be drawn somewhere, it seems appropriate to put it at the point where the parties are united by close blood relation or marriage ties.

Wherefore the judgment of the lower court is affirmed.

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