124 Ky. 822 | Ky. Ct. App. | 1907
Affirming.
Mrs. Lon Terrell, the wife of George E. Terrell, of Louisville, left Louisville on January 28, 1903, at 12 m. on the Illinois Central train to go to .her father’s home at Memphis, Term. The train, if on time, would reach Memphis at 12:1 that night. At 6:30 that evening her husband sent to her father the following telegram: “Lonisville, Ky., January 28, 1903. Jerry Johnson, 564 Lauderdale St,, Memphis, Tenn, Meet Lon at I. C. depot to-night. George E. Terrell.” At the time the message was sent the clerk told Terrell tliat the message would go through in 20 minutes. It did reach Memphis in due time, hut was not delivered. Mrs. Terrell’s train reached Memphis two hours late, or about 2 o’clock in- the morning. She had been summoned to Memphis on account of the sickness of a sister, and expected some of the family to meet her. She had with her two little children, aged three and cne years. Her father lived about three miles from the station,' and to get to his house it was necessary to pass through the red light district and the residence part of the city. "When nobody met her, she went in the station and remained there with her children until 6 o’clock, when she took a street car and went home. The street cars had stopped running at 12 o’clock, and she testified that she would not like to- trust herself through at tha.t time of night in a cab or back; that the Patterson Company is a transfer similar to the Lonisville Transfer Company, but she did not communicate with it; that she walked to the window, and when she saw the colored men she did not think she would trust herself with them. She had lived in Memphis and knew-something of the hotels, but had never
. On these facts the court instructed the jury as, follows:
“ (1) The court instructs the jury that it is admitted by the evidence of the defendant that it received the lelegram specified in the pleadings and proof for delivery, and was paid in advance therefor. It then became the duty of the defendant to use ordinary diligence to deliver same to the address and party named therein, and, if you believe from the evidence that it negligently failed to deliver to the addressee or his house as per direction, then the law is for the plaintiff, and the jury should so find.
“ (2) The jury is further instructed that in estimating damages-, if you find for the plaintiff, you can only find in addition to the sum of 30 cents, which defendant offers to confess judgment for, such a sum as will fairly and reasonably compensate the plaintiff for such mental and physical suffering as is shown to be the direct and proximate result of the negligent fail*827 ure of the defendant to deliver the said telegram, in all not exceeding- the sum of $1,500.
“(3) If, however, the jury shall believe from the evidence that the defendant used ordinary diligence in its effort to deliver said telegram within a reasonable time, then it was not guilty of negligence in failing to so deliver, and, in that event, the jury should find for the plaintiff in the sum of 30 cents. It was, however, the duty of plaintiff, when her friends failed to meet her at the depot as alleged and proven, to exercise that degree of care for her own safety and comfort which ordinarily prudent persons usually exercise under like circumstances, and, if you believe from the evidence that she failed to exercise that degree of care and caution, then she cannot recover in the action for any mental or physical suffering endured by her in consequence of such failure upon her part, if any, even though you may believe the defendant was negligent as stated in instruction No. 1.
“ (4)) By the term ‘negligence’ is meant the failure to observe ordinary care.
“(5) By ‘ordinary care’ is meant that degree of care usually exercised by ordinarily prudent persons under similar circumstances. ’ ’
The jury returned a verdict for the plaintiff in the sum of $500, on which the court entered judgment, and the defendant appeals.
It is earnestly insisted for appellant that no recovery should be had on account of mental suffering in a case like this. It is conceded that the rule established by this court allows mental suffering as an element of damage for the failure to deliver telegrams announcing to near relatives the sickness or death of a member of the family, but it is urged that the rule has never been carried further, and. should not be. There is no effort in this case to recover for:
In the case at bar the telegram apprised the defendant that mental suffering might reasonably be anticipated from the failure to deliver the telegram, and to allow mental suffering to be recovered is only to allow such damages as the parties should reasonably have anticipated to result from the breach of the contract. Telegraph companies are common carriers. They may take private property under the power of eminent domain. They are required to serve the public. When they negligently fail of their duty, they should be held to a just responsibility, and there is no reason why they should not answer for such damages as may reasonably be anticipated to result from the breach of the contract, Were the rule otherwise, no adequate recovery could be had for the non-delivery of many very important telegrams, such as one announcing the straying or finding of a child, or other social matters. The rule allowing a recovery for mental suffering in this class of cases is not confined to telegrams announcing the sickness or death of a near relative, but extends to all those cases where mental suffering may be reasonably anticipated as the natural result of the breach of the contract., and this is shown on the face of the telegram. The case of Hockenhammer v. Lexington & Eastern Ry. Co., 74 S. W. 222, 24 Ky. Law Rep. 2382, w|as an action for a collision between a locomotive and a wagon at a high
The. court aptly told the jury that there could be no recovery for anything which Mrs. Terrell might have avoided by the exercise of ordinary care. It was thus left with the jury to determine whether in the exercise of ordinary care she should have taken a hack and gone to her father’s or to a hotel for the nighh The whole question of care was thus left to the jury, and, under all the proof, the verdict of the jury is not so against the evidence, or so excessive, as to warrant us in disturbing it.
Judgment affirmed.
Petition for rehearing by appellant overruled.