138 Ky. 500 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing-
.On the afternoon of June 10, 1907, Walter E. Glover, while at Mt. Clements, Mich., on account of Ms health, was told by his wife over the telephone that she had been advised that she had an acute case of appendicitis, and must be operated on at once.
It will be observed that on the face of the message there was nothing to indicate what sort of an operation was referred to. The word “operation” might refer to the operating of a piece of machinery just to be started, as an electrical plant. It does not necessarily refer to a surgical operation, and there was nothing in the message to show that, if a surgical operation was to be performed, it was on one of near kin to the sender, so that mental anguish would be suffered if it was not answered. In Chapman v. Western Union Telegraph Company, 90 Ky. 265, 13 S. W. 880, 12 Ky. Law Rep. 265, which was the first telegraph case in which mental anguish was allowed as an element of damages, this court quoted with approval from Sherman and Redfield on Negligence, section 605, as follows: “Yet, in such cases the damages ought not to be enhanced by evidence of any circumstances which could not reasonably have been anticipated as probable from the language of the written message.”
The Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464, 54 S. W. 827, 22 Ky. Law Rep. 53, 92 Am. St. Rep. 366, which was the next case in which the subject came up, the court, sustaining the rule announced in the previous case, rested it upon the principle laid down in Hadley v. Braxendale, 9 Exch. 341: “When the parties have made a con
In Western Union Tel. Co. v. Reid, 120 Ky. 231, 85 S. W. 1171, 27 Ky. Law Rep. 659, 70 L. R. A. 289, the court denying a recovery for mental anguish, said: “The reason upon which recovery for mental pain and suffering is allowed for negligence in the delivery of social telegrams is that such damages are within the reasonable contemplation of the parties, and. the rule is never applied where a telegram does not on its face apprise the telegraph company of its importance, or show that such damages should be anticipated. The rule that only the natural results which may be reasonably anticipated from the defendant’s wrongful act ma;y be recovered runs through the entire law of torts. ’ ’
Again in Postal Telegraph Cable Co. v. Louisville Cotton Oil Co., 122 S. W. 852, which was a case involving a business telegram, the court after referring to the general rule that special damages not within the reasonable contemplation of the parties cannot be recovered said: “This rule we think is fair and just to apply to telegraph companies. If the message on its face, although partly in cipher,, or unintelligible, would furni-sh to a person of ordinary prudence notice that it was important, and its prompt delivery essential, or if the company or its operator receiving it has notice of its importance, then special damages may be recovered for the failure to promptly transmit or deliver it. On the other hand, if the message is of such a character that it does not convey any information of its importance or the necessity for its prompt transmission or delivery, and if the company or its operator receiving it has no information or notice of its importánce, only nominal damages, or in other words, the price paid for sending the message, can be recovered if the company is negligent in its transmission or delivery.”
The rule allowing damages to be recovered for mental anguish in the case of a social telegram is
We, therefore, conclude that no recovery can be had for mental anguish sustained by the plaintiff. This conclusion makes it unnecessary for us to consider the other questions raised by counsel.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.