West v. Western Union Telegraph Co.

The opinion of the court was delivered by Horton, C. J.:

This was an action brought by George West against the Western Union Telegraph Company, to recover ten thousand dollars damages, occasioned, as claimed in the petition, by the gross and malicious negligence of the *97 company to transmit and deliver the following telegraphic message:

“North Topeka, Kansas, September 14, 1885. — To George West, Delphos, Kansas, care post office: Uncle Sam died last night; funeral Wednesday. John G. West.”

Upon the trial, after the plaintiff had closed his evidence, the telegraph company interposed, and filed a demurrer thereto, upon the ground that no cause of action was proved. The court sustained the demurrer. The plaintiff excepted, and brings the case here for review.

The testimony introduced tended to show that the foregoing written message was handed by John West, the son of George West, to the agent of the telegraph company, at its office at North Topeka on the afternoon of its date, with directions “to forward it immediately;” that the message was ordered by John West to be sent for the benefit of his father; that he paid the agent forty cents for sending the message; that subsequently his father repaid to him the money; that Delphos is about one hundred miles west of North Topeka; that at the date of the message and subsequently, it was operating a telegraph line for hire between the towns of North Topeka and Delphos, with an office in each town; that George West has resided in Kinmundia, Illinois, since 1859; that in September, 1885, he was visiting in Kansas, and at the date of the message and for several days thereafter was with friends in the neighborhood of Delphos; that Samuel C. West was his oldest brother, and after his death that he had no other brother living; that Samuel lived at Philadelphia, Penn., and at the time of his death was seventy-eight years of age; that George West was seventy-three years of age; that he was expecting to hear of the death of his brother, on account of his ill-health, and was anxious to attend his funeral, if notified in time; that while in Kansas he had so fixed his matters as to start at a moment’s warning to attend the funeral; that on September 14, 1885, he inquired at the post office at Delphos for his mail, but did not receive the telegram; that he inquired *98 frequently afterward and sent others to inquire for his mail, but never received the telegram; that subsequently he learned by a letter from his son John of the death of his brother Samuel, but the information came too late for him to attend the funeral ; that if he had received the telegram within a reasonable time after it had been sent, he could have attended the same; that his son John informed the agent at the office of the telegraph company in North Topeka that the message had never been delivered; that George West also inquired at the office of the telegraph company at Delphos on the morning of the 18th of September for the telegram; that the agent said that none had been received for him; that he then told the agent “he would investigate the matter,”and he replied “he had received none, and that none could have been received without his knowing it;” that both George West and John West were informed by the agent at North Topeka that the message had been sent over the wire at its date to Delphos; that the telegram was never delivered to the post office at Delphos, or to George West, by the agent of the telegraph company, or anyone else.

*99

1. Telegram, not delivered; agency; action by father. 2. Damages-measure of recovery.

*98 Upon what grounds the trial court sustained the demurrer to the evidence, is not clearly disclosed. In our opinion, the demurrer should have been overruled, as there was ample evidence introduced for the case to go to the jury. The message was written and delivered at the office in North Topeka, and paid for by John West, the son of the plaintiff, for the benefit of the latter. Subsequently George West returned to his son the money paid by him to the telegraph company, and ratified and approved his son’s acts in the transaction, in all respects as if the message originally had been written and sent under his direction. In Burton v. Larkin, 36 Kas. 246 , it was held that “a person for whose benefit a promise to another, upon a sufficient consideration, is made, may maintain an action on the contract in his own name against the promisor.” In Dresser v. Wood, 15 Kas. 344 , it was held “that where an action is commenced by an attorney at law without the knowledge or *99 consent of the plaintiff, the plaintiff may afterward ratify the same, and thereafter be entitled to all its benefits.” The contract, therefore, made by the son with the telegraph company for the benefit of his-father, which was afterward approved and ratified by the father, was sufficient as the basis of this action. The plaintiff, uporrthe evidence introduced, was entitled to recover judgment against the defendant for his actual damages , including the forty cents paid for the' transmission of the message. (Telegraph Co. v. Howell, 38 Kas. 685 ; Telegraph Co. v. Crall, 38 id. 679; Logan v. Telegraph Co., 84 Ill. 468 .)

3. Exemplary damages, when. Further than this, if upon another trial it shall be established that there was such gross negligence on the part of the agents of the telegraph company as to indicate wantonness, or a malicious purpose in failing to transmit and deliver the message, then the plaintiff would be entitled to exemplary damages. Such damages are given more to punish the wrongdoer than to recompense the party injured. (Scott & J. Tel., §§ 417, 418; S. K. Rly. Co. v. Rice, 38 Kas. 398 ; same case, 16 Pac. Rep. 817 , and cases cited therein.) In Schippel v. Norton, 38 Kas. 567 , we recently held, where no actual damage is suffered no exemplary damages can be recovered; but as actual damages are shown in this case, that decision is not applicable.

4. Mental anquish-no damages. It seems, however, to be claimed upon the part of the plaintiff that he is entitled ,to recover for his mental anguish or suffering occasioned by the delay in the announcement of the death of his brother. Where mental suffering is an element of physical pain, or is a necessary consequence of physical," pain, or is the natural and proximate result of the physical ’ injirry, then damages for mental suffering may be recovered, where the injury has been caused by the negligence of the defendant; but in an action of this kind, we do not think that damages for mental anguish or, suffering can be allowed. “Such damages can only enter into and become a part of the recovery where the *100 mental suffering is the natural, legitimate and proximate consequence of the physical injury.” (City of Salina v. Trosper, 27 Kas. 544 .) The general rule is: “ That no damages can be recovered for a shock and injury to the feelings and sensibilities, or for mental distress and anguish caused by a breach of the contract, except a marriage contract.” (Russell v. Telegraph Co., [Dakota,] 19 N. W. Rep. 408 .) In So Relle v. Telegraph Co., 55 Tex. 308 , it was decided that an action for mental suffering alone can be maintained. The opinion in that case, however, was prepared by a member of the commission of appeals of Texas. And subsequently, in the case of Railway Co. v. Levy, 59 Tex. 563 , the supreme court of Texas overruled that decision. (See also Wood’s Mayne Dam., 1st Am. ed., 74.)

We also add that the trial court should have permitted the plaintiff to show the arrangements made with his son John to forward to him at Delphos all telegrams and mail matter that came addressed to him at Topeka.

The judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.

All the Justices concurring.