Rowell v. Western Union Tel. Co.

• Decision Date: 05 November 1889
• Parties: ROWELL <I>v.</I> WESTERN UNION TEL. CO.
• Court: Texas Supreme Court

12 S.W. 534

ROWELLv.

WESTERN UNION TEL. CO.

Supreme Court of Texas.

November 5, 1889.

Appeal from district court, Marion county; JOHN L. SHEPPARD, Judge.

Todd & Rowell, for appellant. Stemmons & Field, for appellee.

GAINES, J.

The following statement of this case is taken substantially from appellant's brief: Appellant and his wife reside at Jefferson, Tex., and on the night of October 7, 1887, received, through the defendant, the following telegram: "Athens, Texas, Oct. 7, 1887. To Mrs. Josie Rowell, Jefferson, Texas, care of J. H. Rowell: Your mother is worse; come if you can; dangerously sick. [Signed] W. C. SCOTT." Early next morning appellant delivered to and paid appellee the regular charge (45 cents) to send the following telegram: "To W. C. Scott, Athens, Texas: How is mother? If no better, Josie comes to-night. Answer my expense. [Signed] J. H. ROWELL." This telegram, constituting said Scott as appellant's agent to convey to him this information, was promptly delivered; and at once, in reply thereto, and in pursuance of such agency, the said W. C. Scott delivered to and contracted with appellee to send immediately the following reply: "Athens, Texas, Oct. 8, 1887. To J. H. Rowell, Jefferson, Texas: Telegram received. Mother some better. Doctor said not dangerous. [S'g'd] W. C. SCOTT." This message appellant charges was never delivered at all, through the negligence of appellee's agents and servants. Appellant alleges actual damages from the failure of appellee to perform its contract undertaken at Athens, from loss of time and business to himself and mental distress, at $100, and for mental and physical sufferings of his wife, $2,400. The appellee filed a general demurrer and a general denial. The court, upon the general demurrer, dismissed the petition and the cause, and appellant prosecuted this appeal. The only assignment is: "The court erred in sustaining defendant's general demurrer to plaintiff's petition and cause of action, and in dismissing the case over plaintiff's exception." We are of opinion that the demurrer was properly sustained. The damage here complained of was the mere continued anxiety caused by the failure promptly to deliver the message. Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most cases, but the cases are rare in which such emotion can be held an element of the damages resulting from the breach. For injury to feelings, in such cases, the...