126 Ky. 42 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
This appeal is prosecuted from a judgment of the Fulton circuit court, entered upon a verdict in favor of appellee, who recovered damages for mental anguish suffered on account of being prevented' from attending the funeral of her brother, due to the failure of appellant to deliver a telegram sent her announcing his death. The deceased died at Newark, Arkansas,, and appellee lived in Hickman, Kentucky. The telegram in question was promptly sent by the operator at Newark, and in due course of transmission should have been delivered to appellee about 10 o’clock on the morning of August 14th, but was lost in transmission and not received by her at all, and she did not learn of her brother’s death until several days afterwards. Her brother died early on the morning of the 14th, and his family, not hearing from appellee, buried him, on the evening of that day. If a reply to the message had been received by them, they could and would have deferred his interment until the following day. Had appellee received the message in due time, she could have reached Newark at S o’clock on the morning of the 15th, and over the objection of appellant she was permitted to testify that upon receipt of the message she would at once have telegraphed the family not to bury her brother until after her arrival on the 15th, and the evidence leaves no room to doubt that her request in this respect would have been complied with. If the message had been delivered in a reasonable time after its reception,
That appellant was guilty of negligence is not denied. Its duty was to have delivered the message within a reasonable time after receiving it, and this obligation it failed to discharge. Appellee’s right of action to recover damages is predicated upon the theory that the failure of appellant to deliver the message announcing her brother’s death was the ordinary and natural cause of her inability to attend his funeral, and her grief resulting therefrom; and the establishment of this fact lies at the very foundation of her case. As the funeral took place at a time which would have made it impossible for appellee to be present, even if the telegram had been transmitted and delivered without delay, it is argued for appellant that the failure to deliver it could not have been the proximate cause of appellee’s inability to attend the funeral and view the remains of her brother, as whether she would have done this or not, if the telegram had been received in due time, depended on the contingencies that she would at once have telegraphed the family to keep the remains until her arrival and that they would have respected her wishes. It is insisted that these intervening acts that must necessarily have been performed to enable appellee to be present at the funeral removed the result so far from the cause that the injury complained of could not be considered the probable or proximate conse
The case at bar is easily distinguishable from the two mentioned. Here the telegram on its face furnished information of its serious import, and was notice to the company that its prompt delivery was important; and it may fairly be said to have been within the contemplation of the parties at the time the message was received that the failure to deliver it within a reasonable time would greatly grieve and distress the addressee. It is also reasonable to assume that a person to whom a message of this character is transmitted will promptly take some action in relation to it. The evidence is uncontradicted that Mrs. Caldwell would and could have promptly sent a telegram requesting that the funeral be deferred until her arrival, and that her wishes would have been respected. The contingency upon which she might have enjoyed this comfort was not remote or speculative. It is true intervening steps must have been taken, and independent causes set in motion. But there is no reasonable doubt concerning what she and the family of .deceased would have done, had the message been delivered. The appellant undertook to transmit and deliver to the addressee without unreasonable delay this message, and should be held liable for the consequences of its negligence
The recovery of $1,000 in damages is more than should have been awarded; but we do not feel disposed to reverse because the amount seems to be excessive. It is extremely difficult — in fact, wé might add, impossible — to fix any certain standard of recovery in cases of this character. In the very necessity of the ease, the amount must be left to the judgment and discretion of the jury; and, unless their award is so excessive as to be palpably unjust, it will hot be disturbed.
The judgment of the lower court is affirmed.
Petition for rehearing by appellant overruled.