Potts v. Western Union Tel. Co.

• Citation: 18 S.W. 604
• Parties: POTTS v. WESTERN UNION TEL. CO.
• Decision Date: 15 December 1891
• Court: Texas Supreme Court

18 S.W. 604

POTTS v. WESTERN UNION TEL. CO.

Supreme Court of Texas.

December 15, 1891.

Commissioners' decision. Section A. Appeal from district court, Hopkins county; E. W. TERHUNE, Judge.

Suit by M. E. Potts against the Western Union Telegraph Company for failure to deliver a telegram. There was a demurrer to the petition, which was sustained, and plaintiff appeals. Reversed.

Whittle & Son, for appellant.

MARR, J.

Mrs. M. E. Potts (now Gibson) originally instituted this suit against the Western Union Telegraph Company to recover $5,000 as damages on account of the negligent failure of the defendant to deliver a certain telegram announcing the fatal sickness of her husband, Frank Potts, now deceased. The suit was begun some time in the spring of 1888; the first amended original petition bearing the file-mark as of April 12, 1888. The facts detailed below appear substantially from the second amended original petition, filed April 7, 1890. The appellant, on March 10, 1888, caused the following telegram to be delivered to the defendant for transmission and delivery from Detroit Tex., to Sulphur Springs, Tex., viz.: "To William McCann, Sulphur Springs, Texas: Come at once. Mr. Potts is not expected to live. [Signed] M. E. POTTS." The defendant accepted the telegram, and agreed to promptly transmit and deliver it to the said addressee. The appellant caused the charge for transmitting the message, amounting to 25 cents, to be paid at the time to the defendant, and the message was sent at her instance and for her benefit. The addressee, William McCann, is her brother, and resided at Sulphur Springs, as did also her mother, while she and her husband (Potts) resided at Detroit, Tex., at the time. The husband was dangerously sick at the above date, and on the 13th day of March, 1888, died. The plaintiff "was very much in need of the aid and sympathy of her said brother at, before, and after the death of her said husband. The telegram was never delivered to the brother, though he was well known in the town of Sulphur Springs. Had it been delivered promptly, or, as it should have been, on the 10th of March, the brother would "have gone immediately to the aid of the plaintiff," and been present with her "at the death of her said husband." He did not come because he did not receive the telegram. On the 17th of March, having received a letter through the mail from the plaintiff, announcing the death of Mr. Potts and the fact that she had sent a message, he then went to the company's office in Sulphur Springs, "and found said telegram in said office, seven days after its transmission." "By reason of not having her said brother with her in [during] her deep distress at the death of her said husband, the plaintiff suffered great mental anguish, disappointment, and grief, to her great damage, etc., all of which was the result of the defendant's gross negligence in failing to deliver said telegram as aforesaid."

To the amended petition, last mentioned, the defendant demurred upon the following grounds, viz.: (1) "The petition fails to show any cause of action in the plaintiff, but shows that the cause therein stated is in favor of her deceased husband's estate." (2) "Fails to state any fact or facts in law sufficient to recover for injury to her feelings by reason of the relationship existing between plaintiff and Wm. McCann." The third exception denies the right of the plaintiff to recover on account of the absence of her mother, because the latter is not mentioned in the telegram. This objection is doubtless based upon some mistake or misapprehension of...