G., C. & S. F. R'Y Co. v. Levy

• Decision Date: 05 June 1883
• Docket Number: Case No. 4896.
• Citation: 59 Tex. 542
• Parties: THE G., C. & S. F. R'y CO. v. I. T. LEVY.
• Court: Texas Supreme Court

59 Tex. 542

THE G., C. & S. F. R'y CO.

v.I. T. LEVY.

Case No. 4896.

Supreme Court of Texas.

Jun. 5, 1883.

APPEAL from Milam. Tried below before the Hon. W. E. Collard.

Ballinger & Mott, for appellant, that the contract made on Sunday was illegal, cited Texas Penal Code, art. 183; Parsons on Contracts, vol. 2, star pp. 646 and 762, and note n; Addison on Contracts, vol. 1, p. 381; Thilock v. Webb, 56 Me., 100;Pate v. Wright, 30 Ind., 476;Stewart v. Davis, 31 Ark., 518.

That exemplary damages cannot be recovered for mental suffering caused by gross negligence in the breach of a contract, cited Greenl. Ev., vol. 2, sec. 267 and note 2; Sedg. on Dam., vol. 1 (7th ed.), p. 24 and note a; Scott & Jarnagin on Telegraphs, secs. 417, 418; Wilson v. Young, 31 Wis., 574;Johnson v. Wells, Fargo & Co., 6 Nev., 224;Curtis v. R. & S. R. R. Co., 18 N. Y., 534;Walsh v. C., M. & St. P. R'y Co., 42 Wis., 23; Brown v. C., M. & St. P. R'y Co., Wis. Leg. News, February 2, 1882; Joch v. Dunkwardt, 85 Ill., 331; Hamlin v. G. N. R'y Co., 1 H. & N., 408-411; Hobbs v. L. & S. W. R'y Co., 10 Law Rep. (Q. B.), 111; Blake v. Midland R'y Co., 18 Q. B., 93; 10 Eng. L. & Eq., 437; Field on Damages, 630; Wharton on Negligence, sec. 756; Thompson on Negligence, vol. 2, 837; Shearman & Redf. on Negligence, 557.

Henderson & Henderson and Maxey & Fisher, for appellee.

STAYTON, ASSOCIATE JUSTICE.

The cause of action set out in the brief of appellant is as follows:

“The plaintiff alleged that appellant owned and operated a telegraph line from the town of Cameron, in Milam county, to the town of Cleburne, in Johnson county, transmitting telegrams for hire. That on September 30, 1882, appellee's wife, Bettie Levy, died, and his infant child died the day before near said town of Cleburne. That appellee, being in straitened circumstances, among strangers, and in need of pecuniary assistance about the funeral obsequies and burial of his wife, and desirous of removing the corpse of his wife to Milam county for interment, and being in great distress and requiring and desirous of the help, consolation and assistance of his father, I. Levy, then residing at said town of Cameron, and also being desirous of the help, comfort, consolation and assistance of Mrs. Catherine A. Dean, the mother of his wife, who also resided at said town of Cameron, delivered to appellant, about ten o'clock, A. M., of October 1, 1882, a telegram, paying the charges thereon, and informing appellant of the necessity for a prompt transmission and delivery of the same, and that appellant undertook to deliver the same in a reasonable time. The following is a copy of said telegram:

‘CLEBURNE, October 1, 1882.

To I. LEVY, Cameron, Texas:--Bettie and baby dead. Come to Cleburne to-night train to my help. Wade meet you. Tell her mother.

+----------------------+
                ¦(Signed)¦J. T. LEVY.' ¦
                +----------------------+
                

That notwithstanding appellant's undertaking to deliver said telegram in a reasonable time, appellant wilfully, and by its carelessness and negligence, failed to deliver the same within a reasonable time, and did not deliver the same until about eleven o'clock, A. M., of October 2, 1882. That October 1, 1882, the day on which the telegram was delivered to appellant, was Sunday, but that the transmission and delivery of the same was a work of necessity and charity. That appellee kept the body of his wife disinterred, awaiting the arrival of said I. Levy, and expecting, also, the arrival of the mother of his wife, until about ten o'clock, A. M., on the 2d day of October, 1882, when his father, I. Levy, failing to arrive, and failing to hear from him, and it being impossible to keep the body of his wife longer out of the grave, he had her buried. That if appellant had delivered said telegram to appellee's father, I. Levy, he would have come to his relief and would have rendered him needed pecuniary assistance, and that he and his said wife's mother would have been present at the funeral obsequies and burial of his wife, and would have comforted and consoled him on that sad occasion. That on account of the absence of appellee's father and his wife's mother he was compelled to put the body of said wife away among strangers and to bear his heavy affliction alone, without the comfort and consolation of any relative or friend. That appellee incurred heavy expense in keeping the corpse of his wife out of the grave awaiting the arrival of his father and wife's mother, and that he was almost out of funds and had to make sacrifice of the little property he had in order to pay the expenses incurred and to avoid the importunity of his creditors. That on the failure of his father to answer said telegram, or to come to his relief, he was greatly distressed and mystified; that injury inflicted on the feelings of the appellee was painful in the extreme, and that he was damaged in the sum of $50,000.”””

The petition further alleged that the telegram was received at the office of the appellant at Cameron about ten minutes after ten o'clock, A. M., on the 1st of October, 1882, and that the train passed Cameron on its way to Cleburne after two o'clock, P. M., on that day, and arrived at Cleburne on the night of the same day, and that if ordinary diligence had been used in the delivery of the telegram, the father of the appellee would have gone to his assistance on that train.

It appears that the father was a merchant residing in the town of Cameron, whose residence, about six hundred yards from the telegraph office, if not known, might easily have been ascertained, and that upon the receipt of the telegram at Cameron it was sent out three times during the day by a messenger boy, who went to the father's place of business to deliver it, but not to his residence, and not thus finding him, although he was at his residence the greater part of the day, the dispatch was not delivered until about ten o'clock, P. M., on the next day.

It does not appear that the person who delivered the message to the messenger boy advised him of the necessity for prompt delivery of the same. The facts alleged in the petition were in the main proved.

It is urged that the court erred in overruling the exceptions filed to the petition. There are only two questions raised by the demurrers deemed necessary to particularly consider in disposing of the case, the others being clearly untenable.

It is claimed that the contract to send the message was illegal because made and to be executed on Sunday. There was no error in this respect. The petition and evidence show a case in which the acts which appellant contracted to perform were necessary to secure decent burial to the deceased wife of the appellee, and the presence of parents. The court might and ought to have instructed the jury that the contract to do things necessary to such an end was a contract to do a work of necessity and of charity, and therefore valid. Doyle v. Lynn, etc., 118 Mass., 197.

It is urged that neither the petition nor evidence shows such facts as can be made the basis for damage. In cases of this character, there is frequently great difficulty in determining whether they are to be limited to such measure of damages as are usually allowed in cases for breach of contract, or whether, in addition to such measure, circumstances of aggravation may be shown, and the larger measure of damages, recognized as proper in cases of torts, applied; or whether such cases, though to some extent based upon contract, may not be considered as essentially founded on tort.

Actions such as this are not based solely upon breach of contract, and hence to be considered in the determination of the measure of damages by the rules applicable to a breach of contract to sell and deliver property, or to do certain acts in reference to property, but the rules applicable to such contracts, in so far as applicable, may be looked to; as where a contract has been made under special circumstances, which are known to the contracting parties, and from which, in the nature of things, special damage will result if the contract is not performed. There the parties are to be presumed to have contracted with reference to such circumstances and the damage which will naturally flow from a non-performance of such contract; and in such case, where the element of wrong, oppression or wilful neglect enters into the breach of the contract, any damage, either actual or exemplary, which the law authorizes to be recovered, ought to be held to have been contemplated by the parties, and therefore recoverable, unless technical rules of procedure or evidence prevent it. In this state we have no forms of action, and a plaintiff may state all the facts upon which he relies for a recovery, if they be so connected that out of the same transaction one injury results; the extent of the injury and right to increased damages being affected by all the attendant facts.

The reasons which have been given by courts which recognize forms of action, why, even in transactions based upon contract, any circumstances of aggravation by which the wrong is intensified may not be set up and a recovery had thereon as in cases purely in tort, lose much of their force in courts where no technical forms of action are recognized.

The tendency of the decisions in courts where technical forms of action have been discarded is to apply the same rule for the measure of damages in cases based upon contract, which are attended with circumstances of aggravation, as is applied in actions grounded in tort solely.

Referring to this question Mr. Field says: “We have noticed the extent to which the courts have gone in considering motives on breaches of contracts, and there would seem to be a tendency to allow an inquiry into the motives generally in such cases. And when the question is freed from the technical and formal objections we have referred to, there can be no sound reason why a plaintiff may not recover as ample damages for a...