Ft. Worth & D. C. Ry. Co. v. Beauchamp

are property useful for some purposes, and common carriers are under legal obligation to receive and properly carry them. Walker v. Railroad Co. (Iowa) 33 N. W. 224. In this the case of a common carrier differs from those of owners of mills, magazines, or other places where such explosives are voluntarily manufactured or stored in such way as to unreasonably endanger the persons or property of the public or of neighboring property owners. Such places are generally held to be nuisances, the mere existence and maintenance of which render their owners liable for damages resulting from explosions, without regard to the degree of care exercised in keeping them. Wier's Appeal, 74 Pa. 230; Cheatham v. Shearon, I Swan, 213, 55 Am. Dec. 734; Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744; Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654. But a railroad company must carry freight of this character over its road, and such dangers as necessarily result to others from the proper and reasonable performance of this duty must be borne by them as an unavoidable incident of the proper transaction of legitimate business. But a nuisance may result from the negligent exercise of a right or performance of a duty with respect to one's own property or property in his charge. I Wood, Nuis. § 4 and notes. nuisance to others may thus arise from the careless discharge by a common carrier of its duty in the transportation of such dangerous articles as are here in question. The right to carry them does not include the right to subject persons along the route to dangers from explosions for a longer time or in a greater degree than is reasonably necessary to the proper performance of the carrier's duty. This is an obvious deduction from plainest principles. If, therefore, the car was unnecessarily and unreasonably delayed at the place where it exploded, so as to subject plaintiff's property to such danger for a longer time than would have attended a transportation made with reasonable dispatch, such keeping of the car at that place was a nuisance. The case thus supposed would not differ essentially from those of other keepers of dangerous explosives; or if ordinary care was not exercised by the appellee in keeping and caring for the car, and the absence thereof gave rise to a degree of danger such as would have been avoided by the exercise of it, such negligence would make the presence of the car so negligently kept a nuisance. Ordinary care is the measure of appellee's duty, but, of course, the degree of diligence and the nature of the precautions to be used depend upon the nature and circumstances of the situation and the danger to be avoided. The finding of the trial court that there was such negligence will, if supported by evidence, sustain its conclusion that the car, under the circumstances stated, constituted a nuisance. We are of the opinion that there was evidence from which the court could properly conclude that, considering the very dangerous contents of the car, there was negligence both in leaving it so long at that

Louisville & N. R. Co. v. Hull

place and in not properly caring for it while there. No reason for the delay is shown, and the circumstances stated by the judge might have been held by him sufficient to call for a showing on the part of the defendant of any circumstances which made the delay necessary or reasonable, and to justify the conclusion, in the absence of such a showing, that there were none. This, and the further question as to the precautions which ordinary prudence required in keeping the car, are questions of fact which this court cannot resolve. We merely hold that there was evidence tending to sustain both conclusions of the trial judge, and this answers the first and second questions as far as we can answer them.

To the third we answer that, if there was negligence such as we have indicated, the evidence justifies the conclusion that it was the proximate cause of the damage to plaintiff's house.

LOUISVILLE & N. R. Co. v. HULL.

(Court of Appeals of Kentucky, May 29, 1902.)

[68 S. W. Rep. 433.]

Delay in Shipment of Corpse-Damages-Mental Suffering.

In an action against a carrier to recover damages for delay in the shipment of a corpse, there may be a recovery for mental suffering. Same-Excessive Verdict.

A verdict for $1,640 for a delay of a few hours in the shipment of the corpse of plaintiff's wife, resulting in a delay in the interment only from one afternoon until the next morning, is excessive; plaintiff being treated with proper courtesy, and there being no intimation that the condition of the corpse rendered a speedy interment necessary.

Appeal from circuit court, Webster county.

"To be officially reported."

Action by George W. Hull against the Louisville & Nashville Railroad Company to recover damages for delay in the shipment of a corpse. Judgment for plaintiff, and defendant appeals. Reversed.

Yeaman & Yeaman, Gordon & Gordon, H. W. Bruce, E. W. Hines, and B. D. Warfield, for appellant.

L. P. Little, W. A. Taylor, G. W. Hickman, and Baker & Baker, for appellee.

HOBSON, J. The wife of appellee, G. W. Hull, died at Ashville, N. C., on May 26, 1900. He lived at Slaughtersville, Ky., and started home with the corpse of his wife. He bought tickets to Nashville for himself, child, and the corpse. About sunup, as he was approaching Nashville, he saw the conductor, and had him to telegraph to the ticket agent at Nashville to have the tickets ready for him. He did this for fear of want of time between the arrival of his train and the departure of the train for Slaughtersville. When he got to Nashville he went immediately with his little girl to the ticket office,

Louisville & N. R. Co. v. Hull

and told the agent he wanted two whole tickets and a half ticket to Slaughtersville. The agent said to him to get back in line, and wait until his turn came. He said "Didn't you get a telegram to have these tickets ready?" The agent answered, "Yes; but I knew you had plenty of time, and didn't get them ready." Hull then took his place in the line, and after a while got up to the window and received his tickets. He then said, "One of these tickets is for a corpse. The agent answered, "I know it, and have it already marked." Hull then asked, "What must I do with the corpse ticket?" The agent said, "Take that and show it to the baggage master in the baggage room." Hull went immediately to the baggage room, and handed the baggage master the corpse ticket, telling him he had a ticket for a corpse. The baggage master punched it and handed it back to him. Hull then said, "Now, who must I give it to?" He said, "Keep it and give it to the conductor on the train. That is all you have to do. You need not be uneasy. Everything will be all right. The corpse was then between the baggage-room door and the gate, setting on a truck between the door and the fence on the platform. Hull got on the train, and sat there some minutes. Presently he saw his trunk pass to the baggage car, and, not seeing the corpse go by, went out to the conductor, who was standing beside the train, showed him his tickets, and told him he had a ticket for a corpse, and wanted to be sure that everything was all right. He wanted to know who to give the ticket to. The conductor said: "That is all right. Whenever you get a ticket like that, that is all you have got to do. I will take that ticket up on the train." Hull replied: "I am uneasy. I am afraid everything isn't all right. I have seen my trunk pass along, but I haven't seen the corpse. Then the conductor halloed to the porter, and asked if there was a corpse on the train. The porter said, "No." The conductor ran into the baggage room to see about it. He was gone probably two minutes, and when he came out the train started immediately. He came into the coach where Hull was, and told him that his wife's remains had been sent off on the Northwestern. Hull said: "How did this happen? This is an awful thing." He said: "I don't know. It is a terrible blunder. It is an inexcusable mistake." Hull asked what he was going to do about it, and he said that he would telegraph to the superintendent, and get the box brought back and sent up on another train. At Earlington he brought Hull a telegram, stating that he had found the corpse; had secured it on some other road; that it would be sent up on the first passenger train; and for him to extend to Hull any courtesy he could. Hull reached Nashville at 6:40 a. m. The train for Slaughtersville left at 7:10 a. m. The conductor was still looking for the corpse, when he was ordered by the station master to pull out, as it was then two minutes past leaving time. The box containing the

Louisville & N. R. Co. v. Hull

corpse had tacked upon it a card reading: "Mrs. G. W. Hull, Slaughtersville, Kentucky." Hull had telegraphed to Slaughtersville that he would come on the morning train, and have the burial that evening. The train was due at Slaughtersville at noon. They got everything in readiness for the funeral, and, when the train arrived without the corpse, the relatives who had come to the station returned home, and those who had come to the church for the funeral, three miles in the country, were sent home. Some time after midnight the corpse reached Slaughtersville, and it was buried the next day. It rained the next morning, and a great many did not come. Quite a concourse had assembled the day before. Hull had been nursing his sick wife six months. His vitality was much exhausted, and he was in a weakened condition, so that it was only by a strong effort of the will that he was able to be on his feet. He seemed a good deal confused, looked like he was almost broken down, and was terribly worried over his trip, and the way he had been disappointed. He filed this suit to recover damages of the railroad company, and proved on the trial substantially the above facts. The proof for the company was to the effect that when the corpse reached Nashville it was placed on a truck by the side of the train, and remained there until after the Slaughtersville train left. After this it was taken to the baggage room of the road over which it had come, and later in the day, when the mistake was found out, was taken over to the baggage room of appellant. The baggage master and the conductor denied the statements of Hull given above, and testified that the corpse was not in charge of appellant's agents until after the train for Slaughtersville had left. Their testimony is confirmed by a number of employees about the station. Hull's version of the transaction is confirmed by his little girl, by the punched marks in the corpse ticket, and some other circumstances. The jury to whom the case was submitted returned a verdict in favor of Hull for $1,640, and the defendant appeals.

The court instructed the jury that if, after Hull purchased the tickets, the box containing the corpse was placed in charge of the defendant in reasonable time for shipment on the train, and defendant agreed to ship it on that train, and negligently failed to do so, or if defendant had a reasonable time after receiving the corpse to ship it on the morning train by the exercise of proper diligence, and for the lack of such diligence it was not so shipped, and its arrival at Slaughtersville was delayed on account thereof, they should find for the plaintiff such an amount in damages as would reasonably compensate him for the trouble, inconvenience, and cost caused by the delay, and they might also allow a reasonable amount for any mental anguish the plaintiff suffered by reason of the delay. But if he failed to inform the agents of the defendant as to the whereabouts of the corpse, or failed to notify them to put the same on the morning train for Slaughtersville, the

Louisville & N. R. Co. v. Hull

jury should find for the defendant, unless the defendant's baggage agent assured him when he punched his ticket that defendant would look after putting the corpse on the train. The jury were also told to find for the defendant if, after receiving the box, its agents did not have a reasonable time, by the exercise of proper diligence, to put it on the train and ship it to Slaughtersville, and that they could in no event award anything to the plaintiff on account of the delay, inconvenience, or distress suffered by those who attended at the depot or graveyard, or who were prevented from attending the burial by the delay in the arrival of the corpse.

It is earnestly insisted for appellant that there is no property in a corpse (Keys v. Konkel, 119 Mich. 550, 78 N. W. 649, 44 L. R. A. 242, 15 Am. St. Rep. 423), and that mental suffering cannot be recovered for in a case of this character. In Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850, which was a suit for damages for delay in the shipment of a corpse, the court said: "We are unable to distinguish, in principle, this case from those in which recoveries against telegraph companies have been allowed for failure to deliver with promptness messages announcing the death or mortal illness of near relatives. Such cases are exceptional. As a rule, mental suffering is not an element of the damages which are recoverable for the breach of a contract, or in an action for tort, founded upon a right growing out of a contract. Ordinarily the object in sending a telegraphic message announcing the death or sickness of a relative is to afford the person to be benefited the solace that may result from being present during the last illness of the relative, or attending his obsequies, as the case may be. The direct result of the failure to perform the duty of delivering the message being to deprive the person addressed of this solace, and to cause distress of mind, it is not unreasonable that he should have his compensation therefor." This case was followed in Wells, Fargo & Co.'s Express v. Fuller (Tex. Civ. App.) 35 S. W. 824. The right to recover for mental anguish for failure to deliver a telegram in the class of cases referred to was upheld in Chapman v. Telegraph Co., 90 Ky. 265, 13 S. W. 880, and after reconsideration his case was adhered to in a number of recent cases. In Telegraph Co. v. Vancleve (Ky.) 54 S. W. 827, the court said: "It is probably in accordance with the views of the majority of the state courts that mental anguish and injured feelings alone, and unaccompanied with physical injury, do not furnish ground for recovery. in this state the rule has been announced otherwise. likewise, a recovery in this class of cases can be had under the decisions in the states of Texas, Alabama, Indiana, Iowa, North Carolina, and Tennessee. It may be admitted that there are difficulties in the way of an exact measurement of such damages, but it does not seem to us that this is a sufficient reason why a negligent public carrier should escape with

And so,