122 Ky. 839 | Ky. Ct. App. | 1906
OPINION op the Court by
Affirming.
\ A telegram ' wias sent from Booneville, Ind., to appellee, then at Louisville, Ky., on August 10, 1904, as follows: “Jake Lacer, Enterprise Hotel, Louisville, Ky. Napoleon failing, can’t live, do'Qtor says. L. Lacer.” The Napoleon referred to was appellee’s brother. He was then very ill at Booneville, Ind., and died on August 21, 1904. If the telegram had been delivered promptly, appellee, who was at the Enterprise Hotel in Louisville, could have reached his. brother’s bedside before his death. But the telegram was not delivered till August 25, 1904, six days after it was sent, and four days after the death of appellee’s brother referred to therein. It is admitted that appellant had not a direct line of wire from Booneville, Ind., to Louisville, Ky. The message had -to be sent to Evansville, Ind., where it was transferred from one of appellant’s lines to another, and thence forwarded to Louisville. In taking it off the Booneville line and transferring to the Louisville line some of appellant’s agents misread the name Lacer, and sent it as Koer, so that, when it was delivered to the Enterprise Hotel at Louisville, there being no one there by the name of Jake Koer, it was returned to appellant’s receiving office
The action is maintainable under the laws of this State (Chapman v. Western Union Telegraph Co.. 90 Ky. 268, 12 Ky. Law Rep., 265, 13 S. W. 880; W. U. Tel. Co. v. Van Cleave, 54 S. W., 827, 22 Ky. Law Rep., 53, 107 Ky., 464, 92 Am St. Rep., 366), unless, as appellant contends it is, the cause of action accrued in Indiana, where such damages are not recoverable, which brings us to an analysis of the cause of action sued on. Appellant is engaged in a service of the public for hire. Its business is that of a common carrier of messages. It contracted with the sender of the dispatch in this case, for the benefit of appellee, that it would promptly and expeditiously deliver the exact message received by it to the person at the place addressed. The relation is one' growing out of contract. The breach by appellant gives the sendee of this message the right to recover damages within the legal contemplation of the parties when it was entered into, which, since the Chapman Case, supra, must be deemed to have included mental anguish occasioned by a failure to deliver it. Appellant seeks to avoid the 'breach of the contract by alleging, so as to avoid the effect of the Kentucky rule on this subject, that the breach oecuiTed by reason of its negligence wholly in the State of Indiana, where the contract was made. The cases of C., C., C. & St. L. Ry. Co. v. Druien, 118 Ky., 237; 80 S. W., 778; 26 Ky. Law Rep., 103; 66
But, argues appellant, the performance in this case was in course of execution in Indiana, where the contract was made, when it was breached; i. e. when
Judgment affirmed»