Southwestern Telegraph & Telephone Co. v. Andrews

• Decision Date: 06 June 1914
• Docket Number: (No. 7997.)
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. ANDREWS.
• Court: Texas Court of Appeals

169 S.W. 218

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. ANDREWS.

(No. 7997.)

Court of Civil Appeals of Texas. Ft. Worth.

June 6, 1914.

Appeal from District Court, Clay County; P. A. Martin, Judge.

Action by John V. Andrews against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

S. P. English and A. P. Wozencraft, both of Dallas, and J. C. Chesnutt, of Henrietta, for appellant. Taylor & Humphrey, of Henrietta, for appellee.

DUNKLIN, J.

John V. Andrews recovered a judgment against the Southwestern Telegraph & Telephone Company for $750 as damages for mental anguish alleged to have been sustained by him as the proximate result of the negligence of the defendant company in failing to transmit a telephone call which plaintiff's brother, Will Andrews, attempted to send from Wills Point to Henrietta, plaintiff's home. From that judgment the defendant company has appealed.

The call was put in by Will Andrews at Wills Point on September 16, 1913, and his purpose was to inform plaintiff, then residing at Henrietta, that his half-sister, Mrs. Almedia Stone, was very ill and not expected to live. Mrs. Stone, who was then at Martin's Mill, about 23 miles from Wills Point, died very early on the morning of September 17th, and was buried on the afternoon of that day.

According to evidence introduced by plaintiff the call was placed with defendant's agent at Wills Point about 8:30 o'clock on the evening of the 16th, and if it had been promptly communicated to plaintiff, he would have taken the early morning train of September 17th on the Ft. Worth & Denver City Railway to go to the bedside of his half-sister. He alleged in his pleadings that by taking that train he would have reached Martin's Mill in time to have attended the burial of Mrs. Stone. In order to make that trip, it would have been necessary for him to travel to Ft. Worth on the Ft. Worth & Denver City Railway, from Ft. Worth to Wills Point over the Texas & Pacific Railway, and from Wills Point to Martin's Mill by private conveyance. His brother met a Texas & Pacific Railway passenger train coming from the direction of Ft. Worth to Wills Point, due to reach Wills Point at 10:06 a. m. of September 17th, but it was an hour late, and did not arrive until 11 o'clock. He waited for this train to meet plaintiff and take him out to Martin's Mill. After the arrival of the train he proceeded to Martin's Mill, and arrived there just as the casket was being loaded into the hearse for the trip to the cemetery, and attended the burial of Mrs. Stone. If plaintiff had been upon that train he would have gone with his brother upon the trip so made. The wife of Will Andrews had notified plaintiff over defendant's telephone line about 6 o'clock on the morning of the 17th of the death of his sister, Mrs. Stone. The morning train of the Ft. Worth & Denver City Railway was scheduled to leave Henrietta for Ft. Worth at 3:40 o'clock, but on that date it was late and did not leave until 4:47. No proof was made when that train arrived at Ft. Worth, nor when it was scheduled to arrive at that station, and none was offered to show when the train which was met by Will Andrews at Wills Point was scheduled to leave Ft. Worth, nor when it actually did leave. For lack of such testimony the judgment of the trial court must be reversed. Plaintiff testified that on December 25, 1912, he left Henrietta on the early morning train of the Ft. Worth & Denver City Railway, and from Ft. Worth traveled on the Texas & Pacific Railway, passing through Wills Point, and arrived at Grand Saline, about 30 miles east of Wills Point, at 11 o'clock on the same morning. He testified that he did not recollect the exact hour he left Henrietta on that trip, nor the exact time he reached Ft. Worth, but gave it as his best recollection that he left Henrietta about 4 o'clock and arrived at Ft. Worth near 7 or 8 o'clock. This was the only testimony introduced by the plaintiff to show that he could have reached Martin's Mill in time to attend the burial of Mrs. Stone, if he had promptly received the telephone message which his brother attempted to send on the evening of September 16th. In the case of W. U. Tel. Co. v. McDavid, 103 Tex. 601, 132 S. W. 115, it was held that proof of schedules of two connecting railroads according to which a trip could have been made from Abilene to Newark in time for plaintiff's wife to have attended the burial of her father, was sufficient to support a finding that she could have attended such burial if the telegram announcing the death had been promptly delivered at Abilene. But plaintiff's testimony in this case, as shown above, was not sufficient to show even the schedules of the two trains upon which he said he would have traveled if the message had been promptly transmitted, to say nothing of the fact that the train upon which he would have started was more than one hour late reaching Henrietta, and the absence of any testimony to show whether the train which reached Wills Point about one hour late left Ft. Worth on schedule time, whatever such schedule may have been.

Appellant insists that the relationship of half-brother and half-sister was not sufficiently close to sustain any recovery by the plaintiff. It seems to be well settled in this state and other states that, in the absence of personal injury, damages are recoverable for mental anguish resulting from a failure to properly deliver a telegram announcing the sickness or death of parent or child, husband or wife, sister or brother, grandparent or grandchild. In W. U. Tel. Co. v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92, the Supreme Court of Alabama announced that the rule would not be extended so as to include relationships any more remote than those named, and of like effect is the decision of the Supreme Court of Kentucky in Lee v. W. U. Tel. Co., reported in 130 Ky. 202, 113 S. W. 55. Recoveries were denied in the following cases by our courts: W. U. Tel. Co. v. Wilson, 97 Tex. 22, 75 S. W. 482, in which the relationship was that of uncle and niece; W. U. Tel. Co. v. Coffin, 88 Tex. 94, 30 S. W. 896, in which the relationship was that of brothers-in-law; W. U. Tel. Co. v. Gibson (Civ. App.) 39 S. W. 198, where the relationship was that of mother-in-law and son-in-law; Rich v. W. U. Tel. Co. (Civ. App.) 110 S. W. 93, where the relationship was that of son-in-law and father-in-law; W. U. Tel. Co. v. Kanause (Civ. App.) 143 S. W. 189, where the relationship was that of stepfather and stepson. In each and all of those cases no notice was given to the telegraph company at the time the messages were sent of any special affection existing between the plaintiff and the person whose sickness or death was announced in the telegram; the only recovery sought being for such grief as could reasonably have been anticipated from the relationship shown. In the case of the W. U. Tel. Co. v. Coffin, supra, which was a suit for damages for a negligent failure to deliver a telegram announcing the death of plaintiff's brother-in-law, our Supreme Court used the following language:

"The former decisions of this court have settled the following propositions of law applicable to the case:

"1. That the person for whose benefit a telegraphic message is sent, and who is named in the message, or of whose interest therein notice is given to the company at the time, may sue upon it in case of injury from the negligence of the telegraph company.

"2. That the telegraph company is charged with notice of the relationship which actually exists between the parties named, whether disclosed by the terms of the message or not.

"3. That the company receiving the message must take notice of the purposes for which the message was sent as disclosed by the language of the message, and in case of messages relating to serious sickness or death, it must be held to know that the person for whose benefit it is sent has a serious interest in the prompt delivery of it.

"4. From the fact of blood relationship, if it exists, a jury may, without other proof, infer that mental anguish was occasioned by the failure to be present at the bedside of the sick or at the funeral of the deceased relative.

"5. The mental anguish, whether accompanied by injury to the person or not, is a proper element of actual damages, and when caused by the negligence of the telegraph company in failing to deliver a message, compensation therefor may be recovered by the injured party. * * *

"That husband and wife, parent and child, and brothers and sisters, may recover under the principles before announced is settled by the decisions of this and other courts which have agreed with the decisions made in this state on that subject. To what degree of remote relationship the inference of injury may be...