Response to petition for rehearing by
JUDGE SETTLE:We are asked to modify the opinion herein, to the extent of withdrawing so much thereof as holds that the demurrer to the third paragraph of the answer was properly sustained by the lower court.
The paragraph in question contains the averments that the contract for the transmission and delivery of the telegram informing appellant of the Avounding of his son was made •in the State of West Virginia, the consideration there paid, and that the contract Avas to be performed in that State; that the parties contracted Avith reference to the laws of that State, and intended that the contract should be construed according to the .laws thereof; that the breach of the contract, if any there was, occurred in that State; and, further, that, under the laws of West Virginia and the decision of its court of last resort, recovery for damages of mental pain and suffering, such as were claimed by appellant for the alleged negligent failure of appellee to deliver the telegram, are not allowed, because unaccompanied by physical injury.
The paragraph in question does not deny that Pineville, Ky., Avas the place at which the telegram was to be delivered. Indeed, it is elseAvhere in the ansAver admitted that Pineville, in this State, was the point of delivery, and this fact is shown by the telegram itself. It follows, therefore, that the averments of the answer as to the contract having been made with respect to the laws of West Virginia, and a.s to its alleged performance in that State, and the like, are mere conclusions of the pleader, contradictory of the admitted facts, and inconsistent with other matters of defense relied-on in the answer.
*636In view of the undisputed fact that the telegram was to be delivered at Fineville in this State, appellant’s place of residence, it inevitably follows that the contract could not be fully performed Avithout its delivery Avitliin a reasonable time to appellant at that place, hence the place of performance was in this State.
If appellee’s failure to deliver the telegram in a reasonable and the customary time resulted from its negligence, we think it immaterial whether the negligence Avas that of its West Virginia or Kentucky agent, as in either event it af-" fected the performance of the contract in this State by delaying the delivery therein of the telegram, thereby causing a breach of the contract in this State, which would haA-e entitled appellant to recover some part of the’damages claimed, but for his failure to prove, as held in the opinion, that he could have reached his son before his death, if the telegram summoning him to his bedside had been delivered in the proper or reasonable time.
As we are unable to perceive any satisfactory reason for modifying the opinion, the petition is overruled.