127 Ky. 137 | Ky. Ct. App. | 1907
Opinion of the Court ,by
Reversing.
This is an appeal from a judgment of the Jefferson circuit court, common pleas branch, second division, sustaining a demurrer to and dismissing appellant’s petition. The object of the action was to recover of appellee damages alleged to have, been sustained by appellant on account of its failure to deliver within a reasonable time the following telegram : “Received at the Board of Trade office, Louisville, Kentucky, March 2nd, 1906. To Harry Thurman, Great Northern Theater, Chicago, 111.. Nellie worse; pronounced small-pox; sent to pest-
The effect upon appellant of appellee’s failure'to promptly forward and deliver the message is expressed in the petition as follows: “That she was in great mental anguish and distress on account of the condition of her said child, and was in great need of the advice and counsel of her said husband in said distress, * * * and by reason of said negligence this plaintiff was deprived of the advice and counsel of her said husband in her said distress and anxiety, all of whch was caused by the gross negligence and carelessness of the defendant in failing to deliver said telegram. She says that, because of the negligence aforesaid of the defendant, its servants, and employes, the husband of the plaintiff did not return to the city of Louisville on said 3d day of March, 1906, or for many days thereafter, and did not communicate in any manner with plaintiff, or notify her of his receipt of said telegram, or of his whereabouts, or give her any advice, counsel, or instruction as to said child, or his wishes in said matter, and she was caused great mental anguish because thereof, and all of which was directly caused by the gross negligence and carelessness of defendant, its servants, and agents aforesaid.” We infer from the briefs of counsel that the demurrer was sustained in the court below on the ground (1) that there can be no recovery for mental anguish such as appellant claims to have suffered in this case; (2) that the language of the telegram was not such as to apprise appellee that the 'wife’s object in sending it was to secure the presence and consolation of her husband, and therefore it could not have been contemplated by the parties that damages would be claimed as a natural consequence of a
The second question we are asked to consider is not difficult of solution. Manifestly the language of the telegram was sufficient to indicate to appellee that appellant’s object in sending it was to secure the
Being of opinion that the petition states a good cause of action, and that the lower pourt erred in sustaining the demurrer, the judgment is reversed, and cause remanded, with directions to overrule the demurrer and for further proceedings consistent with the' opinion.