October 1, 2012

Western Union Telegraph Co. v. Parsons, Pulaski, 1903

WESTERN UNION TELEGRAPH CO. v. PARSONS.

COURT OF APPEALS OF KENTUCKY

72 S.W. 800; 1903 Ky. LEXIS 411; 24 Ky. L. Rptr. 2008

March 18, 1903, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. Action by Mandy Parsons against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: Richards & Richards and O. H. & R. B. Waddle, for appellant.

W. S. Pryor and V. P. Smith, for appellee.

JUDGES: HOBSON, J.

OPINION BY: HOBSON

OPINION

 [*800]  HOBSON, J. Plaintiff, Mandy Parsons, who resides at Greenwood, KY., was the mother of George Parsons, who resided at Jellico, Tenn. George Parsons died on the evening of May 23, 1901, about 9 o'clock On the next morning, between 6 and 7 o'clock, his wife, Julia Parsons, sent the following telegram to his mother:

"Jellico, Tenn., May 24, 1901. "Mandy Parsons, Greenwood, Ky.
" George died yesterday. Body can't be shipped. Burial at Jellico. Julia Parsons."

The distance from Jellico to Greenwood is only about 22 miles; but the message was sent to Louisville from Jellico, and forwarded from there. It did not reach Jellico until about 8:30 a. m. on the morning of May 25th, and was not delivered to Mrs. Parsons until 10 o'clock that morning. She lived in Greenwood, and, according to her testimony, about 200 yards from the telegraph office, or, according to the testimony of the agent, about 500 yards from it. In the  [**2] meantime, however, Julia Parsons having heard nothing from the mother, and the body being in bad condition, buried her husband about 4 o'clock on the evening of May 24th, Mrs., Mandy Parsons filed this suit to recover damages for the neglect in the delivery of the message. It was agreed on the trial that if the message had been delivered promptly she could not have taken any train that would have carried her to Jellico by 4 o'clock that evening, the time when the funeral took place. But it was also shown that there was a fair road between the two places, and that on her last visit to her son she had returned home by this road by private conveyance. It was also shown that the reason that Lie burial took place at 4 o' clock on May 24th was that Mrs. Parsons had not come; they had not heard from her; the condition of the corpse was getting bad; but they could have delayed until the next day, and would have done so but for the failure to hear anything from her. Mrs. Parsons testified that when she got the message she did not observe at first that it was dated the day before, and she began getting ready, evidently with a view of taking the train, but when she saw the date of the message  [**3] thought it was too late to go. If she had gone on the train she would have reached Jellico some time that night. The court instructed the jury as follows: "If you believe from the evidence that the message read in evidence was delivered to and accepted by the defendant at Jellico, Tenn., on May 24, 1901, at about 6:30 a. m., which it undertook to transmit and deliver to the plaintiff at Greenwood, Ky., and that said message was not transmitted and delivered to the plaintiff until about 10 o'clock a. m. on May 25, 1901, and if by the delay of the defendant in transmitting and delivering said message plaintiff was prevented from being present at the funeral or burial of her son, you will find for the plaintiff such a sum in damages as you may believe  [*801]  from the evidence will fairly compensate her for the mental anguish to her, if any, caused the failure to deliver the message, provided your finding will not exceed $1,500; and, unless you so believe from the evidence, you find for the defendant."

It is objected that the instruction assumed the defendant's negligence; that it submits an issue not raised by the pleadings; and that it was erroneous in submitting to the jury whether the plaintiff  [**4] by the delay was prevented from being present at the funeral or burial of her son. It was the duty of the defendant to transmit and deliver the message in a reasonable time. If it failed to do so, prima facie it was guilty of negligence. If the delay was due to the act of God or the fault of the sender of the message, or other matters beyond its control, the burden was on the defendant to show these things, and when it failed to do so the court properly told the jury that, if there was a delay of something like 27 hours in transmitting the message, the defendant was liable, for such a delay is unreasonable.

It is urged that the petition did not charge negligence in transmitting the message from Jellico to Greenwood, but only charged negligence in delaying to deliver it after it reached Greenwood. It is unnecessary to determine now what is a proper construction of the petition, for the defendant by its answer, after denying the allegations of the petition, added this: "It denies * * * that it was guilty of any negligence or carelessness in the transmission or delivery of said message," and on the trial of the case and in its preparation both parties treated the issue as made, whether  [**5] there was any negligence on the part of the defendant in the transmission of the message to Greenwood, or in its delivery after it reached there.

It was held by the Court of Appeals of Texas as in Western Union Telegraph Co. v. Hendricks, 63 S. W. 341, that where a message was sent to a father announcing the sickness of his son, and he could not have reached the son before he died if the message had been promptly delivered, a delay in delivering the message would not warrant a recovery of damages for the failure to reach the son before his death. It was also held by this court in Taliferro v. Western Union Telegraph Co., 54 S. W. 825, that, where a new agency must have acted if the telegram had been delivered, damages could not be recovered for things dependent upon the action of such new agency. But neither of these decisions seems to us in point here. The death of the son in the Texas case was the act of God, and, it turning out that in no event the Plaintiff could have reached his son before death, damages were properly refused for his failure to reach his son, because the delay in the message was not the proximate cause of this. In this case, if the message had been delivered in  [**6] time, there was no new agency to act. The message was to Mrs. Parsons. When it was not delivered to her promptly she was deprived of all opportunity to act, either by going to her son by private conveyance or by telegraphing for them to wait for her coming. If she could reasonably have gotten to her son before the burial if the message had been promptly delivered, it was proper for the court to submit to the jury whether she was deprived of this privilege by the defendant's delay in transmitting the message. In the Taliferro Case the telegram was of mere inquiry, but in this case the message bore information of the greatest importance to a mother, and it might as plausibly be argued that there could be no recovery in any case like this where the message was not delivered in time, because it could never be known what the receiver of the message would have done if the message had been promptly delivered. The testimony taken by the appellant and read by the appellee on the trial, which is uncontradicted, Shows that the body could have been retained until appellee arrived, so that she might be present at the burial.

The appellant took the depositions of Julia Parsons and of C. G. Lambdin,  [**7] who sent the message for her, and after appellee announced through on the trial, but before anything further was done, she asked leave to read these depositions on her behalf. The court allowed this done. If the testimony had been offered before appellee announced through no question would probably be made as to its admissibility; and it was discretionary in the court to allow other testimony to be given after the plaintiff announced through and before anything else was done.

The defendant offered to prove by the agent at Greenwood that he had no porter; that by the rules of the company he was not allowed to leave his office; and that the delay in delivering the message after he had received it from 8:30 to 10 o'clock was due to this. This evidence was properly refused. It is the duty of a telegraph company to deliver messages, and it cannot shield itself from this duty by providing that the agent must not leave his office. When it receives messages to be delivered at a certain office it must furnish reasonable facilities for delivering the messages. It was held in Western Union Telegraph Company v. Crider (Ky.) 54 S. W. 963, "that a company might make reasonable rules for the conduct  [**8] of its business in accordance with the volume done, and that it was not bound, to keep night offices open in small places where the business would not justify it. But this cannot be extended so as to excuse the company for the failure to deliver promptly messages during business hours, and when its office is kept open.

It appears from the testimony of the agent of the defendant who received the message that he was told by the sender that Greenwood was on the Cincinnati Southern Railroad, and the agent wrote the message out. If he failed to put on the message a sufficient  [*802]  direction, or to send it to the proper place, it was not the fault of the sender. There are two places called Greenwood in Kentucky—one in Warren county, and the other in Pulaski county, on the Cincinnati Southern Railroad. The agent was told when the message was delivered to him, according to his own statement, that the latter was the place the message was to go, and it was his own fault if he did not send it correctly, or so send it that it would reach the point he was told it was destined for. There was, therefore, nothing in this to submit to the jury.

The verdict is large, but not so palpably excessive or against  [**9] the evidence as to justify us in disturbing it.

Judgment affirmed.

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