172 Ky. 215 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
The appellee/D. C. Baker, recovered in the court below of the appellant, Western Union Telegraph Company, a verdict and-judgment for $500.00 by way of damages claimed on account of its alleged negligence in failing to deliver a telegram informing him of his mother’s death and which, if delivered within a reasonáble time, would have enabled him, as further alleged, to be present at her funeral and burial. Appellant’s dissatisfaction with the judgment led to, the present appeal.
It appears from the record that appellant’s mother died in Indianapolis, Indiana, July 19, 1910, and .that her remains were shipped by rail to the town of Berea, Kentucky, where they arrived about noon, July 20, 1910. The funeral occurred at two p. m. on the 20th in Berea, at the residence of her són, J. K. Baker, and on the 21st Of July the remains were carried in a hearse to the town of McKee, in Jackson county, twenty-five miles from Berea, for burial. The burial took place at McKee'- on the ,21st, about or just before dark. On July 19th, the day before the mother’s remains reached Berea, J/Iv. •
“Come to Berea at once your mother is dead.”
As appellant does not own or operate telegraph lines between Berea and Jackson, this message had to be sent from Berea to Lexington and from that city over a line of the Postal Telegraph Company to Jackson. Appellant’s operator, Bower, testified that the above message was not received by him until 6:12 o’clock p. m. July 19th; that he turned it over to the assistant dispatcher, Stickrod, by whom it was transmitted to Lexington to be from there forwarded to Jackson. J. K. Baker, the sender of this telegram, was quite indefinite as to the time of its delivery to Bower, saying in one part' of his testimony that he was of the belief that it was handed him about five o’clock p. m. and later between five and six. It appears, however, from the testimony of J. E. Stivers, then and now the operator of the Postal Telegraph Company at Jackson, that the above message was never received by him or at his office; and also from his testimony, as well as that of the appellee, that the telegram, if received in due course, could not have been delivered to the latter, because he was not in Jackson after six o’clock on the morning of July 19th, until after the 22nd of July; that.is to say, appellee left Jackson at six o ’clock a. m. July 19th as a brakeman on a freight train for Lexington, which train did not reach Lexington until six o’clock p. m. of that day. It further appears from the testimony of appellant’s operator Bower and its operator at Lexington that by a custom of the Postal Telegraph Company, its office at Jackson was opened at seven a. m. and closed at six o’clock p. m. each day. Consequently, messages, attempted to be sent to that office after six p. m. were not received,' or if received not delivered until after seven o’clock the following morning.
While appellee’s evidence may be said to conclusively show that the message left by J. K. Baker with appellant’s operator at Berea to be sent appellee, was never received at the office of the Postal Telegraph Company at Jackson, it nevertheless fails to show that if delivered at the Jackson office it would or could have
When appellee failed to reach Berea July 20th for his mother’s funeral, his 'brother, J. K. Baker, again saw appellant’s agent, Bower, informed him of appellee’s non-arrival and asked him if he would not make another effort to find him. This was at 1-.54 o’clock p. m. July 20th. Bower said he would do so and thereupon sent the following- telegram to P. F. Kesheimer, the Lexington & Eastern Railway Company’s master, of trains at Lexington:
“Please advise Mr. D. C. Baker who is either a brakeman or conductor on your road that his mother died in Indianapolis. Remains reached Berea today and will leave for McKee at five o’clock Thursday for burial. Want him to come to Berea tonight. Request him to advise if coming.”
Kesheimer was out of Lexington on some one of the Lexington & Eastern’s lines when this telegram reached his office at Lexington. It was, however, received by a clerk in the office, who, together with the dispatcher, in the absence of Kesheimer attempted to ascertain the whereabouts of appellee, who was in Lexington the whole of the 20th, and give him the message, but they were unable to find him. Kesheimer, according to his testimony, returned to Lexington between six and seven o’clock the evening of the 20th, made immediate effort to locate appellee, found that he was out in the country and that the persons with whom he was taking dinner had no telephone. However,-he said that about the time he made these inquiries, that is between six and seven o’clock p. m., appellee walked into his office and Kesheimer then handed him the telegram.
In giving his testimony appellee admitted that he was in or about the city of Lexington from the time of his arrival there at six p. m. on the 19th of July until the morning of the 21st of July and that between seven
In our opinion, appellee’s evidence fails in two essential particulars to show in him a right of recovery by reason of any failure on the part of appellant to transmit the telegram intended to reach him at Jackson. First, he rested his case on the fact that appellant did not turn over the telegram of July 19th to the Postal Telegraph Company at Lexington for transmission and delivery to him at Jackson. This fact was not satisfactorily established by his evidence. Second, 'his evidence failed to show that if the telegram had reached Jackson within a reasonable time it would or could have been delivered to him. It appears from the evidence that he was not at Jackson on the day or night of the 19th or on the day of the 20th of July; that on the 19th he was somewhere on a freight train between Jackson and Lexington and on the 20th in or about Lexington
Kesheimer, Bower and other witnesses' for appél'lant testified that an east-bound Chesapeake & Ohio tidin'at that time left Lexington at 8:40 p. m. and connected ■'at Winchester with a'Louisville & Nashville train - for Knoxville, which passed through'Berea about 11:20 or 11:40 at night and invariably stopped to put off or take on passengers.' Kesheimer testified that when appellee came to his office and inquired about the telegram sent from Berea on the afternoon of the 20th it was between six and seven o ’clock. If it was not later, than seven o’clock appellee had an hour and forty minutes within which to get ready and take the C. & O. train leaving Lexington at 8 :40 p. m., which would have carried him to Winchester, from which the L. & N. train would- have taken him to Berea by 11:20 or 11:40 o’clock .that night, many hours before the hearse was started with his mother’s remains from Berea to McKee. It is true appellee testified that he did not go to Kesheimer’s office on the night of July 20th, as testified by the latter,.but first went there at six o’clock on the morning of the 21st, when he first saw the telegram, and then procured from Kesheimer free transportation over the Lexington,. &
It is useless to speculate as to how much of the mental suffering experienced by appellee was attributable to his failure to be present at his mother’s funeral, or what part of such suffering was due to the disagreeable condition in which he saw her remains at the place of burial, resulting from the drive over the rough roads between Berea and McKee, of which he might have been relieved could he have seen the body before it left Berea. Such things,' however painful to his feelings, cannot enter into the. decision of the case, because in no way chargeable to any negligence on the part of appellant. Indeed, it seems clear from the evidence that the sole cause of appellee’s failure to see his mother’s remains before they left Berea, was his failure to take the C. & O. train which left Lexington at 8:40 on the night of July 20th, which would have carried him to Winchester in time to connect there with the Knoxville train of the
For the reasons indicated, appellant was entitled to the peremptory instruction for a directed verdict in its behalf, asked by it at the conclusion of all the evidence, and the refusal of such instruction by the trial court constitutes reversible error.
In view of the above conclusion, it is 'unnecessary to discuss the objections made by appellant to the instructions that were given by the court, further than to say that none of them should have been given,.the only instruction required being, as previously stated, one directing a verdict for the appellant.
As the question already decided is the material and conclusive one in the case, the decision of others incidentally presented by counsel is deemed unnecessary.
Judgment reversed and cause remanded for a new trial consistent with the opinion.