129 Ky. 788 | Ky. Ct. App. | 1908
Affirming.
Between 8 and 9 o’clock on the morning of Friday, July 12, 1907, Richard Quigley deposited with the agent of the appellant company, the Cumberland Telephone & Telegraph Company, at Glasgow, Ky., $25, to be transmitted and delivered to his daughter, Eddie Curd, in Louisville, Ky., for the purpose of having the body of the infant child of appellee, who-had died at the home of Eddie Curd, her sister, in Louisville, Ky., prepared for burial, and shipped to their home in Barren county. All of the necessary charges were paid by the appellee, including the messenger fee for notifying Eddie Curd that the money had been telegraphed, and for her to call at the office of the appellant company in Louisville and get it. The money was not delivered to Eddie Curd until about noon on Saturday, and because of its delay in transmission, appellee alleged that he was caused to lose time and expend money, and suffer great mental pain and anguish and humiliation, and he sued to recover of appellant damages therefor. This litigation resulted in a verdict in favor of appellee for $200, and from the judgment predicated on that verdict this appeal is prosecuted.
The facts, as alleged in the pleadings, and as gathered from the proof, are as follows: Appellee’s daughter, a girl some 11 or 12 years old, while on a visit with her mother to her married sister, Eddie Curd, who lived in the city of Louisville, was taken sick and died. This was on Thursday, July 11th, about noon. Mrs. Curd telegraphed her father, who' lived some four miles from Glasgow, notifying birrv of the death of his daughter, and also sent a special
Counsel for appellant offer quite a number of reasons why the judgment should be reversed. Their first complaint is that the petition was fatally defective, and that the demurrer should have been sustained thereto. In substance, it alleges that, by reason of the negligent act of appellant in failing to transmit the money, the plaintiff was caused to suffer great mental pain and anguish, by reason of the delay in the shipment of the corpse, loss of time, and expenditure of money. We are of opinion that these allegations constituted a cause of action, and, if true, appellant should be held answerable therefor.
Appellant’s next complaint is that it was not liable, because of the intervention of a new agency, in
Appellee desired to give his daughter a decent and timely burial. With this end in view he sought the services of appellant, and appellant contracted with him to send the money necessary to enable him to have his daughter properly prepared for burial and
It is further insisted that, as the child was already dead, the mere delay in its shipment and interment affords no ground of complaint for appellee. To this we cannot agree. The delay in the delivery of the money and consequent shipment of the body denied to appellee the right to give his child a prompt burial; denied to him the right to look upon its features as they were in life, for, while it is true that before interment the casket was opened, it is equally true that at that time the body had become so discolored, and decomposition was so far advanced, that the father saw instead of the features of his child, a
Appellant also complains that the court erred in instructing the jury that appellee might recover for loss of time and money expended, which were due to the negligence of appellant. The petition charged that there was a loss of time and expenditure of money in going to the trains for the purpose of meeting the corpse. If there was, and the delay in the shipment of the corpse was occasioned by the failure of appellant to carry out its contract promptly, then it should be held answerable therefor, and the court properly submitted this question to the jury.
Appellant also complains that the court erred in instructing the jury, but the record shows that the instructions were, of anything, more favorable to appellant than they were to appellee.
Appellant also charges that, because of misconduct on the part of counsel for appellee in addressing the jury, the case should be reversed. The language complained of is as follows: “I will tell you how you can- know that the defendant did not notify Eddie Curd, and why you should believe her in preference to Clyde Harris. Eddie Curd went out and tried to mortgage her only furniture to get the money with which to buy a coffin and ship the corpse, and you know she would not have done this if she had been notified by the defendant.” At the time these remarks were made counsel for appellant objected, and the court thereupon directed the jury that they must bear the evidence in mind, and if counsel went outside of the evidence in his speech, they must disregard it.
To the complaint that the verdict is excessive we-may say that larger verdicts have repeatedly been upheld in cases not more meritorious and under circumstances less aggravating.
On the whole case it is apparent that appellant had a fair trial, and the judgment is therefore affirmed.