134 Ky. 642 | Ky. Ct. App. | 1909
Opinion of the court by
— Reversing.
Appellee, J. M. Maxberry, instituted this action in tbe Carlisle Circnit Court against appellant, Cumberland Telephone & Telegraph Company,” to recover damages for the failure of the latter to deliver
The facts are as follows: J. M. Maxberry, who formerly lived in Ballard county, Ky.i with his brothers and sisters, went to Muhlenberg county several years ago, and located about five miles from the little town of Bolton, where he resided at the time his cause of action arose. Maxberry had an invalid sister, who resided with her brother-in-law, N. T. Denton, in Carlisle county, Ky. Some time in March 1908, he visited this sister, who, at the time was in a very low state of health. Before leaving for his home in Muhlenberg county he arranged with Denton to telephone him at once in the event of the serious illness or death of his sister.
On the evening of the 7th of June, 1908, his sister, who at the time was at a health resort in Illinois, was taken suddenly ill, and died on the morning of the 8th of June, about 8 o’clock. N. T. Denton got into communication with appellant’s operator in Bolton, and told her that Maxberry’ sister was dead, and he wanted Maxberry to come to the phone. According to the testimony for appellee, the operator' agreed, 'on behalf of the company, to deliver the message to appellee and call him to the phone if Denton would pay the cost of delivery, amounting to $1.50. Max-berry was at his home on the 8th day of June, and
It is first insisted that the petition is fatally defective because it does not charge that appellee upon receiving the message would have come to the phone, and that the sender of appellee would have paid the costs of the message.
In the first place, appellant did not stand on the demurrer, but joined issue on the facts alleged in the petition. Moreover, we regard this objection as highly technical, for the reason that the evident pur
During the progress of the case it developed that appellee and N. T. Benton had agreed to divide the proceeds of any judgment that might be obtained against appellant. It is insisted by appellant that this agreement was void, and deprived appellee of his right of action against it. It is true the contract so made is void under section 209, Ky. St. Neither party had any right of action predicated upon the contract so made. By the terms of the statute the champertous agreement itself is rendered null and void — not the cause of action, which was the subject of the champertous agreement. This question was'before this court in the case of Wehmhoff, etc. v. Rutherford, 98 Ky. 91, 32 S. W. 288, 17 Ky. Law Rep. 659. There the court said:
“Under section 2, c. 11, Gen. St. (section 209, Ky. St.), all contracts made in consideration of services to be rendered in the prosecution, or in aid of the prosecution, in or out of court,, of any suit, whereby the thing sued for or in controversy is to be received by such person for his services or assistance, shall be null and void. Section 8, c. 11, Gen. St. (section 216, Ky. St.), provides 'that neither party-to any contract made in violation of the provisions of this chapter shall have any right of action or suit thereon. ’ This does not mean that when a party has a cause of action existing at the time he makes the champertous contract, he shall forfeit his right to recover thereon, but that neither he nor the champertor shall have anyright of action or suit on the contract made in violation of the statute for the prosecution of the cause of action then existing. In other words, the statute does not cause the creditor who
We, therefore, conclude that the agreement between appellee and Denton presented no defense to this ac- ' tion.
It is next insisted that the trial court erred in its instructions to the jury. The instructions are as follows:
“The court instructs the jury that if they believe from the evidence that defendant company contracted and agreed with N. T. Denton that it would deliver to plaintiff, J. M. Maxberry, a message bearing the news of the death of plaintiff’s sister, and yon
In the instructions above given the trial court seems to have proceeded upon the idea that if appellee’s testimony were true, appellant agreed to deliver the message at all events, and such agreement placed upon it the duty of using extraordinary care. Such is not the rule in this state, nor, in fact, the general rule. When a telegraph or telephone company accepts a message to be delivered beyond its ordinary limits for delivery of messages, and exacts a fee in advance, this fact does not impose upon the company any greater diligence than is required in the case of a message directed to a party within its delivery limits. The company’s full duty is performed when it uses all reasonable diligence, or, as some authorities express it, ordinary care to deliver the message within a reasonable time. Western Union Tel. Co. v. Elliott (Ky.) 115 S. W. 228, 131 Ky. 340, 27 Am. & Eng. Encyc. of Law, p. 1030. We, therefore, conclude that the court’s'instructions were not a proper presentation of the case. Upon the return of the case the court will, if the facts be the same, instruct the jury as follows:
“ (1) If you believe from the evidence that the defendant company contracted and agreed with N. T. Denton that it would deliver to plaintiff, J. M. Max-berry, a message bearing the news of the death of plaintiff’s sister and calling him to the phone, and that the agents or servants of the defendant company failed to use reasonable diligence to deliver the same within a reasonable time after receiving same, and that plaintiff was thereby prevented from attending the funeral of his sister and viewing her' remains,
The judgment is reversed, and cause remanded for a new trial consistent with this opinion.