| Ky. Ct. App. | Sep 30, 1909
Opinion op the court by
— Affirming.
Mrs. Nicie McCoy died on the afternoon of September 25,1907, in the city of Louisville. About an hou r after her death her son, A. H. C. McCoy, delivered to an agent and operator of the appellant, Wester® Union Telegraph Company, at its chief office in the city uf Louisville, for transmission and delivery to the appellee, Mrs. Susan Teague, a sister of deceased, then residing at New Market, Ala., the following telegram :
“Mrs. Susan Teague, New Market, Alabama. Nicie passed away today. Interment in Huntsville Monday afternoon. ' Will pass through New Market at noon. Relatives ánd friends invited. Notify them. A. IT. C. McCoy.”
The sender of the telegram prepaid to appellant’s Louisville agent the charges for its transmission and delivery. The telegram was never delivered to appellee, and she did not attend the burial of deceased, cr receive information of her death, or the place of her burial, in time to do so. Thereafter appellee insi ituted this action against appellant in the court below, claiming damages for the mental suffering alleged to have been caused her by the nondelivery of ihe telegram; it being, in substance, alleged in the petition that the failure of appellant to deliver it prevented her from being advised of the death and of the t^me and place of her sister’s burial, and that, if the telegram had been delivered according to the con
The averments of the petition were traversed by appellant’s answer and the trial resulted in a verdict and judgment in appellee’s behalf for $500 damages. Appellant complains of the judgment and of the refusal of the circuit court to grant it a new trial.
By the evidence introduced in her behalf appellee sustained every averment of her petition essential to a recovery. That is to say, it established the facts: (1) That the telegram was delivered by the sender to appellant’s agent for transmission and delivery to appellee on the afternoon of Saturday, Septemoer 25,1907, and the charge therefor then paid. (2) That it was never received by appellee, but should have been received by her on the following morning (Sunday), or in any event by noon Monday, September 27, the day of the sister’s burial at Huntsville, Ala., and that, if received as late as noon Monday, appellee was. able to go and could have gone on the train containing her sister’s remains from New Market to Huntsville, and thereby have attended the burial, and would have done so. (3) That the nondelivery of the telegram prevented appellee from receiving information of her sister’s death, or of the time and place of her burial, in time to attend the burial, thereby causing her mental anguish and sorrow. Appellant did not attempt to prove a delivery of the telegram to appellee; and, though its Louisville agent and operator admitted receiving the telegram from the sender September 25th, and the payment by the latter of the cost of its transmission, he made no explanation as to its nondelivery
It appears from the evidence that New Market is 18 miles from Huntsville, Ala., and that the train upon which Mrs. McCoy’s remains were carried, to Huntsville passed New Market at 1:30 p. m. Monday, September 27,1907, the time the telegram in question indicated it would do so; that about an hour was required for the train to run from New Market to Huntsville, and that it arrived at the latter place about 2:30 p. m., and it further appears from the evidence that the interment of the body of Mrs. McCoy at • Huntsville occurred at 3 p. m. It was also shown by the testimony of appellee, and at least two of her relatives residing at New Market, that she was a resident of and well known in New Market; that she was at her home on Saturday, Sunday, and Monday, September 25th, 26th, and 27th, and that appellant has, and then had, a telegraph office in New Market. She and the relations in question also testified that she nor they did not hear of the death of Mrs. McCoy before the arrival at New Market of the train containing the remains of the latter; that, upon the arrival there of the train, a son of the deceased, who alighted from it to the railroad platform, expecting to meet appellee and other relatives of his mother and to see them take the train for Huntsville to attend the burial, communicated to appellee’s nephew, Rogers, who happened to be on the railroad platform, the first information received at New Market of the death of Mrs. McCoy; that Rogers, who was without his coat, in order to learn the particulars of her death, then got upon the train and rode to the next station,
According to the evidence, no other train following the one bearing Mrs. McCoy’s remains ran that day from New Market to Huntsville until 8 p. m., and the distance was too great to make the trip in an ordinary vehicle. It is certain, therefore, that appellee could not, after being thus informed of her sister’s death, have gotten to Huntsville in time for the interment. But it appears from her testimony and that of her New Market relatives that if appellant had delivered her the telegram intended to inform her of her sister’s death at noon, or as late as 1 p. m., on Monday, September 27th, she could even on so brief a notice have gotten ready and reached the railroad station by 1:30 p. m., the time of the arrival of the train bearing the remains, and by taking it have been present at the burial. The evidence establishing the foregoing facts was uncontradicted, in view of which there was no way for appellant to escape liability for its failure to deliver the telegram. Its negligence was manifest; and the only real question to be determined by the jury was the amount of appellee’s damages.
We have not overlooked appellant’s contention that whatever mental suffering appellee sustained was caused by the death of her sister, and not because of her inability to attend the burial. But we do not understand appellee’s testimony on that question as it seems to be understood by appellant’s conn
We find no merit in the objection urged by appellant’s counsel to instruction No. 1 given by the trial court. But two instructions were given, and they are as follows:
“(1) It was the duty of the defendant, the Western Union Telegraph Company, to deliver the mes
“ (2) I further instruct you that, in finding for the plaintiff, you will award to her such damages as you believe from the evidence will reasonably and fairly compensate her for her mental pain and anguish, if any, caused by her failing to receive the telegram and caused by her being thereby deprived of attending the funeral services of her sister, the deceased, Mrs. McCoy, not to exceed the sum of $2,000, the amount claimed in the petition. In estimating the damages, gentlemen, the court instructs you that you should not consider or award any damages for the mental pain and suffering and distress which naturally resulted from the death of her sister, your finding to be limited to such mental suffering and distress as resulted from her failure to attend the funeral services of her sister, resulting from the failure to deliver the telegram.”
The criticism upon the first instruction is that it assumes as true the facts essential to appellee’s right to recover, and takes from the jury the right to pass upon them. This is true, but it must not be overlooked that every fact assumed in the instruction is a matter of evidence uncontroverted, for appellant offered no evidence to disprove them, or to establish other facts that would have put the facts assumed by the instruction in issue. It is a well known ride of law that where the facts of a case are undisputed, and but one legitimate inference can be drawn from
"We do not understand that instruction 2 is objected to. At any rate, it correctly presented the measure of damages, and was therefore necessary.
The record being free from substantial error, the judgment is affirmed.