129 Ky. 515 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
On February 1, 1906, about 9 o ’clock in the evening, W. J. Sparks sent the following message from Mt. Vernon to appellant, J. M. Williams, 654 Fourth street, Louisville-, Ky.: “Lovell says you had better come. Mamma no better. [Signed] W. J. Sparks.” This telegram reached the Western Union office in Louisville at 10:56 p. m. It was not delivered until shortly after 8 o’clock the nest morning — too late for appellee to take the morning train for his mother’s home. Had he taken this train, he would have reached Mt. Vernon at 1:24 p. m. His mother died at 3:20 p. m. Appellee instituted this action to recover damages for his mental anguish resulting from the failure of appellant to deliver the telegram to him in time to enable him to reach his mother’s bedside before her death. Appellant answered, denying negligence on its part, and pleading contributory negligence on the part of appellee. According to the testimony for appellant, its night delivery clerk made an effort to call appellee over both telephones immediately upon receiving the telegram. Being unable to reach him, a messenger boy proceeded to 654 Fourth street. After considerable search, he found appellee’s
The case was assigned tó the 27th day of September, 1907, for trial. On the 24th day of September the defendant tendered a motion for an order to require the plaintiff to give his deposition, as provided by subsection 8 of section 606 of the Code of Practice, and to continue the ease until such time as appellant could take the deposition of plaintiff, and summon or take the deposition of witnesses to rebut such portions of his testimony as it should desire. In support of said motion, appellant filed the following affidavit, which was sworn to by its attorney, A. Gr. Ronald: “Affiant, A. Gr. Ronald, says that he is one of the attorneys for the defendant herein; that on the 19th day of September, 1907, plaintiff, Dr. J. M. Williams, and his attorney, Mr. Herman Nettleroth, were present at the office of the clerk of the District Court of the United States for the Western District of Kentucky for the purpose of taking the deposition of certain witnesses on behalf of the defendant herein; that, while plaintiff and his counsel were thus present,
The court refused to allow either the-motion or the affidavit to be filed, but passed the matter to the day upon which the case was set for trial. On said day the court allowed the motion and affidavit to be filed, but overruled the motion, to which ruling the defendant excepted. The case then proceeded to trial. At
In support of its contention that the trial court erred in failing to grant it a continuance when it was made known to- the court that appellee had declined to give his deposition, appellant relies upon subsection 8 of section 606 of the Civil Code of Practice. This section is as follows: “A party may be examined as if under cross-examination at the instance of the adverse party, either orally or by deposition as any other witness; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony.” It is insisted by counsel for appellee that the only purpose of this provision is to-
Appellant also insists that the trial court erred in permitting appellee to testify to the fact that he in conjunction with Dr. Lovell, a physician who attended his mother at the time of her death, had treated his mother frequently before, and that she yielded to such treatment and speedily recovered; also, that the court erred in permitting Dr. Lovell, to testify to the fact that appellee’s mother was. disappointed and depressed when she heard that her son had not arrived on the train and that this disappointment and consequent depression had a tendency to hasten her death. Counsel for appellee insist that such evidence was admissible as bearing upon appellee’s mental anguish, for his grief would be all the greater because of his inability to give his mother the treatment that, had previously brought about her recovery, and because of the fact that she was depressed by reason of his failure to arrive in time to see her. In our opinion, however, the effect of appellee’s testimony would be to lead the jury to the conclusion that the telegraph company was in a sense responsible for the death of appellee’s mother because of his failure to get there and give her the treatment that had formerly resulted in her recovery while to admit the testimony of Dr. Lovell would, in effect, permit a recovery for the mother’s anguish, instead of the son’s. This is one of the few courts giving the right of recovery in cases of mental anguish. We have restricted this to cases of the nearest degree of relationship. The ground of this restriction is that there is a natural mental anguish resulting from a failure
For the reasons given, the judgment is reversed and cause remanded for a new trial consistent with this opinion.