Gulf, C. & Santa Fe R'Y Co. v. Levy

• Decision Date: 05 June 1883
• Docket Number: Case No. 4897.
• Citation: 59 Tex. 563
• Court: Texas Supreme Court
• Parties: THE GULF, C. & SANTA FE R'Y CO. v. ISAAC LEVY.

59 Tex. 563

THE GULF, C. & SANTA FE R'Y CO.

v.ISAAC LEVY.

Case No. 4897.

Supreme Court of Texas.

Jun. 5, 1883.

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

Judgment was rendered for appellee for $1,000. The opinion states the facts sufficiently.

Ballinger & Mott, for appellant, on inability to maintain the action for mental suffering alone, cited Greenl. Ev., vol. 2, sec. 267 and note 2; Sedgw. 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.

Nor could it be maintained by the receiver of the telegram who was no agent of the sender, citing Parsons on Contracts (6th ed.), vol. 2, p. 300; star p. 257; Addison on Contracts, vol. 2, p. 763, sec. 1015; Wharton on Contracts, vol. 2, sec. 791; Whart. on Neg., sec. 757, p. 642; Playford v. U. K. E. Tel. Co., Law Reps., 4 Q. B., 706 (also reported in Allen's Tel. Cases, 437); Dickson v. R. T. Co., 3 C. P. Div.; S. C., 2 C. P. Div., 62 (reported in 19 Moak's Eng. Rep., 313).

Ford & Ford, for appellee, cited Hays v. Railroad, 46 Tex., 273; Railroad v. Randall, 50 Tex., 261; So Relle v. W. U. Tel. Co., 55 Tex., 311.

STAYTON, ASSOCIATE JUSTICE.

The statement of this cause, as made by brief for appellant, which is admitted by the appellee to be correct, is as follows:

“The plaintiff alleged in substance that appellee resided in Cameron, in Milam county; that appellant operated a telegraph line from said town to the town of Cleburne, in Johnson county, transmitting telegrams for hire; that on September ____, 1882, appellee's son, J. T. Levy, and Bettie Levy, the wife of said J. T. Levy, were in said Johnson county, nine miles from said town of Cleburne; that on said day Bettie Levy was taken violently sick and gave birth to a child, and that she died on the evening of the 30th of September, 1882, and that the child died on the ____ day of September, 1882; that appellee's son was among strangers, without money, and in desperate need of assistance and help from appellee; and that immediately upon the death of his wife and child he went to Cleburne, and about nine or ten o'clock A. M. of October 1, 1882, delivered a telegram to appellant, paying the charges thereon, and informing it of the importance of its prompt transmission and delivery. The following is a copy of said telegram:

‘CLEBURNE, October 1, 1882.

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

J. T. LEVY.'

That the transmission and delivery of said telegram was a work of great necessity and charity. That appellant undertook to deliver the same in a reasonable time, but negligently failed to deliver the same until eleven o'clock of October 2, 1882; that by the delay in the delivery of such telegram appellee was prevented from going to the assistance of his son, and from supplying him with money that by reason of such delay his son was followed up and harassed by his creditors for the expenses of the funeral of his wife and child, and had to sell his property at a great sacrifice, and was compelled to borrow money from strangers, and was deprived of the presence of his father and mother in his sore trial, and was compelled--a stranger in a strange land--to be the only mourner at his wife and child's funeral; that appellee has suffered the keenest disappointment and sorest grief at being deprived of the privilege of being present at the burial of his daughter-in-law and grandchild, of relieving his son of his wants, of sympathizing with him in his sad bereavement and trial, and has been damaged in his feelings and otherwise in the sum of $5,000.””” It will appear from the calendar that October 1, 1882, the day on which said telegram was delivered to appellant, was Sunday. Appellant specially excepted to the petition as follows: 1st. Because the petition does not show that plaintiff has sustained any damage. 2d. Because the matters stated in the petition constitute no cause of action. 3d. Because the petition shows that appellee is not entitled to recover. 4th. Because the petition claims damages for the non-delivery of a telegram on Sunday, which, under the laws of this state, appellant was forbidden to do.

The demurrers to the petition were overruled, and that is assigned as error.

There was no allegation nor proof of any damage to the appellee, unless mental suffering alone constitutes such character of injury as will entitle a person to damages in an action based upon negligence.

That a person may enforce a contract made by another for his benefit, although the consideration is paid by such other person, is true; but such is not the contract set up in the petition or proved.

Whatever contract was made by the son was made for the benefit of himself, with no intent that it should inure in any respect to the benefit of the appellee; the contract between the son and the appellant, therefore, cannot be considered as the basis of this action.

To sustain the action it must appear that the appellee has been injured in his person, property or reputation by the negligence of the appellant. It cannot be pretended that in the latter two he has been injured in any respect; and the inquiry remains, has he been injured in his person in any such respect as will entitle him to damages; to such pecuniary satisfaction as, under the settled rules of law, a plaintiff may obtain through an action?

No deprivation of any absolute right of person has been stated which would entitle the appellee at least to nominal damages; and we have the naked question, can a person who has not shown himself deprived of any absolute right for which damages, nominal at least, would be given, maintain an action for an injury to his feelings alone, which results solely from a breach of a contract, to which he is not a privy, made with and for the benefit of another, or from a tort, through which such other person receives an injury personal to himself, for which damages may be given?

Recognizing the fact that by reason of the public character of the employment which the appellant has assumed, a duty existed upon its part to deliver the message to the appellee without unnecessary delay, and that a failure to perform such duty, if attended with damage to the appellee, gives sufficient ground for an action, even in the absence of a contract to which he is a party, it becomes necessary to inquire whether an injury to the feelings of the appellee, unconnected with some other ground for damage, is sufficient to maintain this action.

An act for which the law does not give damages at least nominal cannot in a legal sense be called an injury; and it has therefore been truly said, “it may be laid down as a true proposition, that bare negligence, unproductive of damage to another, will not give a right...