116 Ky. 5 | Ky. Ct. App. | 1903
Lead Opinion
Opinion op the court by
Reversing.
This action was instituted in the Hopkins circuit court by Sophia Cross to recover damages' from the Western Union Telegraph Company for its failure to deliver to her a telegram sent from Kansas City, Mo., conveying the information of the death of her daughter Emma Baxter in time to enable her to attend tina funeral, whereby she was caused great mental pain and distress, and suffered damage in the sum of $1,500. The failure of the telegraph company is alleged to have been caused by its gross negligence. The company, by its' answer, denied the negligence charged in the petition, and pleaded the existence of a rule adopted by it which established in cities containing less than 5,000 inhabitants a free delivery boundary or limit, consisting of all the territory within a radius of a half mile of the office of the company; that outside of this free delivery limit it would not deliver telegrams without the payment of an extra delivery fee; that Madisonville is a city of less than 5,000 inhabitants, and that Sophia Cross lived therein at a greater distance than one-half mile from the office of the company; and that the sender of the, message in question had not prepaid or guarantied the extra delivery fee required by the rule. After the issues were made up, but before a trial of the case, Sophia Cross died, and the action was revived in the name of her administrator. Upon
Sophia Cross was a negro woman living in Madisonville. Ky. Her daughter Emma Baxter died in Kansas City, Mo., on the 21st day of October, 1899. On the day of her death, her husband, James T. Baxter, sent the following message to the mother: “Kansas City, Mo. To Mrs. Sophia Cross, Madisonville, Ky. — Emma Baxter is dead, please come. James T. Baxter.” This message was received at the company’s office in Madisonville on the same day that it was sent, -at 11:40 a. m. Immediately upon its receipt at the delivery office, it was writtesh out and delivered to a messenger, with instructions to find the addressee and deliver the message to her. Tha telegram contained no street number or address, nor any -information as to the color or nationality' of the person to whom it was addressed.' The messenger, upon receiving the telegram, proceeded to search for the whereabouts of Sophia Cross. He states — and in this he is not contradicted — that he inquired at the post-office, the hotels^ and of various persons, white and colored whom he met upon the street, -or whom he suspected might know something of the residence of the addressee of the message. He further states that, .after a diligent search and inquir}1, he was wholly unable to locate the address of appellee’s decedent; that, after the expiration of several hours’ search, he returned the telegram to the office, with the information that he could not locate the person entitled to it. The operator at the delivery office then sent what is called a “service telegram” to the office at Kansas City, stating that Sophia Cross could not be found, and asking for a more definite address. This service telegram was sent on the morning of the 22d of October. On the
The appellant complains of two errors of the court, which we think are well taken: First, that the court erred in instructing the jury on the subject of gross negligence and punitive damages; second, in excluding from the consideration of the jury the existence of the rula as to a free delivery limit, and the failure to give an instruction predicated thereon. We have been cited to no authority holding that in a case like this, based wholly upon a breach of contract, unattended with any physical injury, the defendant is liable for anything more than compensatory damages; and we think the trial court erred in giving the instruction on gross negligence, authorizing the infliction of punitive damages. Moreover, we think the evidence in this case
. Upon the trial of the case, appellant introduced in evidence rule 50, which is as follows: “Messages will he delivered free within a radius of one-half mile from the office in any city or town of less than 5,000 inhabitants, and within a radius of one mile from the office in any city or town of 5,000 or more inhabitants. Beyond these limits
For these errors the judgment is reversed for proceedings consistent with this opinion.
Whole court except Judge Nunn sitting.
Rehearing
Response by
on petition for rehearing:
So much of the opinion as refers to the half-mile limit or rule 50, introduced in evidence, is withdrawn. We adhere to our ruling that on the facts of this case no instruction on punitive damages should have been given. The numerical weight of authority is against the allowance of substantial damages for the non-delidejry ¡of social tele
Petition overruled.