Relle v. W. U. Tel. Co.

Citation55 Tex. 308
Decision Date14 June 1881
Docket NumberCase No. 2737.
PartiesC. O. SO RELLE v. W. U. TELEGRAPH CO.
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

APPEAL from Lee. Tried below before the Hon. I. B. McFarlane.

Suit brought against appellee on the 24th day of June, 1874, to recover $50,000 damages, occasioned, as claimed in the petition, by the willful neglect or failure of appellee to transmit and deliver, within a reasonable time, the following telegraphic message:

“GIDDINGS, Jan. 16, 1874, A. D.

To C. O. SO RELLE,

Office over Miller's Stable:

Your mother is dead; come on night train. Conveyance at T. Wroes.

+---------------------------+
                ¦(Signed)¦WM. M. SCALLORN.” ¦
                +---------------------------+
                

It is in substance alleged in the petition, that appellant's mother died on the 16th day of January, 1874, near the town of Giddings; that on that day the message was prepared and delivered to the appellee's agent at Giddings by a near relative of appellant, for him and for his use and benefit; that appellee received the usual compensation, and undertook and agreed to promptly transmit and deliver to appellant, at his place of business in the city of Austin, said message; and that if the same had been transmitted and delivered, he would have been thereby enabled to be present at the funeral rites of his mother, and pay to her the last tribute of respect; that the appellee willfully failed and neglected to transmit and deliver the message in a reasonable time, and that it was several days after said date before it was delivered to him, notwithstanding he was during all that time constantly at his place of business in said city of Austin; that his said place of business is specified in said message, and was well known to appellee's agents in the city of Austin. And that by reason of said willful fault or neglect of appellee's agents to transmit and deliver said message in a reasonable time, he was prevented from being present at the funeral services of his mother, and in seeing that her remains were properly cared for. It was also alleged that appellee was guilty of gross negligence in not transmitting and delivering the message; and that he was injured and damaged thereby in the sum of $50,000.

The appellee answered by general and special exceptions to the petition, chiefly on the ground that the same showed no cause of action. The exceptions were sustained and the cause dismissed, the usual judgment in such cases being rendered. Appellant assigned as error the sustaining of the exceptions to his petition, etc.

Edward Collier, Seth Shephard and C. O. So Relle, for appellant.

Likens & Stewart, for appellee.--Exemplary damages cannot be recovered in cases of this character, unless actual damage is alleged in the petition and proven on the trial. The failure by plaintiff in his petition in this cause to allege actual damages, for which compensation by a recovery might have been made, is a fatal defect in the petition. When it is remembered that exemplary damages are awarded only as a punishment for a wrong committed, resulting in pecuniary loss to the injured party, the conclusion is irresistible that the plaintiff's petition is defective, because, as before stated, no offense, so to speak, is charged therein, and therefore no punishment can be inflicted; actual loss being necessarily the basis of compensation, it follows, of course, that actual loss must be alleged and proven before something more than mere compensation can be awarded the plaintiff. Mr. Sedgwick, discussing this question, uses this emphatic language: “When the plaintiff applies for pecuniary redress, nothing can as a general rule be more reasonable than to require him to show that he actually sustained injury.” See Sedgwick on Damages, 6th ed., p. 273.

WATTS, J. COM. APP.

The question presented by the record is as to the liability of a telegraph company for injury resulting to the feelings of a person from the willful neglect of the agents of the company to transmit and deliver a message announcing the death of such person's mother, and requesting his presence at the funeral, etc.

This question results from the ruling of the court below in sustaining exceptions to the petition.

The allegations contained in the petition are, in effect, that appellant's mother died on the 16th day of January, 1874, near the town of Giddings; that on that day, Wm. M. Scallorn, a near relative, prepared the message and...

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67 cases
  • Western Union Tel. Co. v. Ferguson
    • United States
    • Supreme Court of Indiana
    • May 28, 1901
    ...province of the legislative, not the judicial, department. The mental-anguish law, so called, was first announced in So Relle v. Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805, decided in 1881. Telegraphy was then a comparatively new element in society, but mental anguish antedated the beginni......
  • Western Union Telegraph Co. v. Choteau
    • United States
    • Supreme Court of Oklahoma
    • May 9, 1911
    ...... existed. [115 P. 880] . .          In. 1881, the Supreme Court of Texas, in the case of So Relle. v. Western Union Telegraph Company, 55 Tex. 308, 40 Am. Rep. 805, allowed substantial damages in a case similar to. the one at bar, citing in ......
  • Peay v. Western Union Telegraph Co.
    • United States
    • Supreme Court of Arkansas
    • January 8, 1898
    ...Luna & Johnson, for appellant. An action may be maintained for damages for mental pain and anguish, independently of physical injury. 55 Tex. 308; Tex. 563; 66 Tex. 580; 69 Tex. 739; 71 Tex. 723; 71 Tex. 507; 72 Tex. 654; 73 Tex. 422; 75 Tex. 537; 75 Tex. 26; 76 Tex. 66; 76 Tex, 217; 79 Tex......
  • Western Union Telegraph Company v. Ferguson
    • United States
    • Supreme Court of Indiana
    • May 28, 1901
    ...the injury. But nowhere is the doctrine sanctioned that mental suffering alone can sustain an action. For the support of its ruling in the SoRelle case the court next quotes at length the dictum of the authors of Shearman & Redfield on Negligence, which dictum--as originally incorporated in......
  • Request a trial to view additional results

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