2. SAME

Western Union Telegraph Co. v. Steenbergen.

TELEGRAMS RECEIVED AFTER OFFICE HOURS.-It is not the legal duty of a telegraph company to deliver telegrams received after office hours until a reasonable time after the beginning of office hours on the succeeding day.

WILLIAM LINDSAY FOR APPELLANT, ARGUED ORALLY.

(No brief on file.).

A. E. RICHARDS ON SAME SIDE, ARGUED ORALLY.

RICHARDS, WEISSINGER & BASKIN ON SAME SIDE.

On errors in instructions: W. U. T. Co. v. Harding, 3 N. E. R., 174; Given v. W. U. T. Co., 24 Fed. Rep., 119.

ROZEL WEISSINGER IN A SEPARATE BRIEF ON THE SAME SIDE. 1. The telegraph company having established reasonable office hours for the delivery of messages at McKinney, was not answerable for not delivering messages out of these office hours. The court should have found as a matter of law that the telegraph company had a right to establish office hours and should have instructed the jury that it was not compelled to deliver the message until the morning of December 20th. This being the case, it would have been impossible for Newton to have taken the message to Tate, who lived three miles from McKinney, in time for Tate to have reached McKinney for the eight o'clock train. 2. Conceding the negligence of the telegraph company, Steenbergen could not have recovered for grief except for grief suffered from the time the receiver of the message could have reached Steenbergen's, had the message been promptly delivered, and the time he could have reached the place with due diligence after the message was actually delivered. The court refused in its instructions to qualify this matter at all. In any view of the case plaintiff's right to recover should have been so limited.

3. The fourth paragraph of the answer alleges that the message was written by Steenbergen on an ordinary piece of white paper, and was delivered to defendant's agent while out of his office, with request to send the same; that the defendant's agent pasted the same upon a day blank, which stipulated that the company would not be liable unless the claim was presented in writing within sixty days after the message was filed with the company for transmission. It was pleaded that the agent of the defendant in taking the writing and pasting it on the telegraph blank was quod ad hoc the agent of Steenbergen, and that therefore Steenbergen became bound by the stipulation. It was set up further that Steenbergen failed to file with the company a claim for damages in writing within sixty days from

Western Union Telegraph Co. v. Steenbergen.

December 19th. To this paragraph of the answer the court sustained a demurrer. It is respectfully submitted that in thus ruling the court erred.

H. W. RIVES FOR APPELLEE.

Against the points of law relied on for reversal counsel made the following citations: Chapman v. W. U. T. Co., 90 Ky., 265; W. U. T. Co. v. Broesche, 13 Am. St. Rep., 843; Young v. W. U. T. Co., 22 Am. St. Rep., 883; Thompson v. W. U. T. Co., 107 N. C., 449; Scott v. Home Ins. Co., 53 Wis, 238; Lane v. Boston & Albany R. R. Co., 112 Mass., 455; Morse v. Conn. River R. R. Co., 6 Gray (Mass.), 450; Ins. Co. v. Woodruff, 2 Dutch. (N. J.), 541; Cleveland, &c., R. R. Co. v. Glosser, 22 Am. St. Rep., 607; Hartford, L. & An. Ins. Co. v. Hayden's admr., 90 Ky., 39. CHIEF JUSTICE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The appellee, Steinbergen, the father-in-law of one Tate Davidson, sent a telegram directing the latter to "come at once, your mother [meaning mother-in-law] can not live;" and because this message was not delivered in time for Davidson to attend the mother-in-law at her last moments the father-in-law (appellee) brought this action against the telegraph company, and has recovered damages for injured feelings and mental anguish in the sum of $400. It is insisted for the company that, even in the courts of those States where mental anguish can be made the basis of recovery, the rule has never been extended beyond nearest degrees of blood relationship.

This contention seems to be supported by the authorities. Certainly no legal presumption of such affection arises as will warrant a recovery for mental anguish, except in cases of such relationship.

Thus, in Telegraph Co. v. Coffin (Tex. Sup.) [30 S. W., $96], a recovery was denied to a brother-in-law; in Same v. McMillan (Tex. Civ. App.), Id., 298; to a sister-in-law; in Same v. Garrett (Tex. Civ. App.) [34 S. W., 649], to a

Western Union Telegraph Co. v. Steenbergen.

stepson; and in Same v. Gibson (Tex. Civ. App.), [39 S. W., 198], to a son-in-law.

A recovery must be denied, therefore, to a father-in-law because of the absence of his son-in-law at the death of the mother-in-law.

Again, the office hours of the company where the message was to be delivered to the sendee were from 7 o'clock a. m. to the same hour in the evening, and the message in question, having been received during the night of the 19th, need not have been delivered until within a reasonable time after 7 o'clock on the morning of the 20th.

This principle was announced in the case just decided by this court of Western Union Telegraph Co. v. Van Cleave (January 3, 1900), [54 S. W., 827].

The instructions of the court should, therefore, have confined the jury to a consideration of the question of negligence, if any there was, in the delivery of the message after 7 o'clock on the morning of the 20th.

It may be observed further that the proof conduces to show almost overwhelmingly that, had the son-in-law received the message on the night of the 19th, he would not have gone to his mother-in-law. After receiving the message on the morning of the 20th, he made no effort to go to her either that day or any succeeding day, and remained in ignorance of her death, which occurred on the 20th, without effort, by mail or otherwise, to learn the facts, until he learned casually of her death some eight or ten days thereafter. Wherefore the judgment is reversed for proceedings not inconsistent herewith.

Safety Building and Loan Association, The v. Montjoy.

CASE 73-ACTION AGAINST BUILDING ASSOCIATION FOR

OVER-PAYMENT-JAN. 5.

Safety Building and Loan Association, The, v.
Montjoy.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

1. BUILDING AND LOAN ASSOCIATIONS-EXPENSE.-A building and loan
association may not by an arbitrary provision of its by-laws
fix an amount to be retained out of each monthly payment on
stock dues for the expense fund; nor may it appropriate to that
fund admission and withdrawal fees; and a member who has
paid such sums is entitled to recover them from the company.
2. SAME-FINES.-Such an association may collect from its mem-
bers fines for the non-payment of dues when they are not ex-
cessive and oppressive, and such fines may be carried into the
profits of the company.

L. H. JONES FOR APPELLANT.

The borrowers from a building and loan association are stockholders and the rights and liabilities appertaining to them in the capacity of stockholders will not be confounded with those pertaining to them as borrowers. Simpson v. Bldg. Assn., 19 Ky. Law Rep., 1176; Rogers v. Rains, 18 Ky. Law Rep., 768; Henderson Bldg. & L. Assn. v. Johnson, 88 Ky., 197..

HENRY WATSON FOR APPELLEE.

On the right of a building and loan association as to expenses, fines, admission and withdrawal fees: Locknane v. U. S. S. & L. Co., 19 Ky. Law Rep., 1984; Simpson v. Ky. C. B. & L. Assn., 19 Ky. Law Rep., 1176; Watts v. N. B. & L. Assn., 19 Ky. Law Rep., 1007; U. S. S. & L. Co. v Scott, 17 Ky. Law Rep, 1244; S. B. & L. Assn. v. Harris, 17 Ky. Law Rep., 721; Ky. Stats., secs. 2218, 2219.

JUDGE DURELLE DELIVERED THE OPINION OF THE COURT.

Appellee brought suit against appellant, alleging that he had borrowed from the company, in April, 1894, $1,400, executing a note therefor, and a mortgage to secure its

1

Safety Building and Loan Association, The v. Montjoy.

payment, upon a tract of land in Montgomery county, and that in February, 1897, he paid some $1,220 to appellant for executing a deed releasing the mortgage. Various payments are alleged to have been made by him by way of monthly dues, interest, premiums and fines for failure to pay monthly dues at the appointed time, which, with the sum paid for the release, are averred to have overpaid the debt and legal interest thereon in the sum of $432.69, a judgment for which amount was prayed for as usury.

By the answer it appears that at the time of the loan appellee subscribed for twenty-eight shares of the stock of appellant, which is a building and loan association or ganized under the general law, and agreed to make pay. ments thereon until the stock should mature, in accordance with the by-laws of the company, in addition to the interest and premium upon the loan.

There is no disagreement as to the amount of money appellee paid to appellant, though there is some difference as to the purpose for which it was paid. Appellee claims that all the money paid by him to the company, no matter for what purpose it was ostensibly paid, should be credited upon his debt as of the date when the payment was made, and the only question is as to the application of these payments.

On behalf of the company it is claimed that the by-laws of the company (which are made a part of the certificate or contract of subscription between appellant and appellee) set apart certain payments made by each subscriber as an expense fund, to be used in paying the oper ating expenses of the company, the salaries of its officers, etc.; the surplus, if any, to be distributed among the stockholders as profits.

It is claimed that the admission fee of $1 per share, the