Stuart v. Western Union Tel. Co.

• Decision Date: 20 November 1885
• Citation: 18 S.W. 351
• Court: Texas Supreme Court
• Parties: STUART v. WESTERN UNION TEL. CO.<SMALL><SUP>1</SUP></SMALL>

18 S.W. 351

STUART v. WESTERN UNION TEL. CO.¹

Supreme Court of Texas.

November 20, 1885.

Appeal from district court, Harrison county; A. J. BOOTY, Judge.

Action by C. B. Stuart, Jr., against the Western Union Telegraph Company for the non-delivery of a message. Judgment for defendant. Plaintiff appeals. Reversed.

John T. Pierce, W. H. Pope, and T. P. Young, for appellant. Stemmons & Field, for appellee.

ROBERTSON, J.

The appellant, who was the plaintiff in the court below, sued the appellee for damages, and recovered a judgment for $2,500. The appellee made a motion for a new trial, which was overruled, and the court below then of its own motion arrested the appellant's judgment, and set it aside on the ground that the petition was insufficient in law to sustain a judgment. From this judgment the appellant appealed, and the only question presented is upon the sufficiency of the plaintiff's petition.

The appellant alleged in his petition that he was a citizen of Harrison county, and appellee was a body politic, duly incorporated, which was represented in said Harrison county by J. P. Morrison, its local agent, and that appellee operated and owned, on February 3, 1883, a telegraph line from the city of Marshall, in said county, to the city of Waco, in McLennan county, Tex., and, for hire, transmitted telegrams for the public between said points. Appellant being informed in Waco, where he then resided, that John E. Stuart, his brother, who lived in Marshall, was there sick, he instructed G. W. Stuart, another brother of his, who also resided in said city, to inform him by telegraph of his brother John's condition. That said G. W. Stuart, as appellant's agent, on February 3, 1883, delivered to the agent of appellee in "Marshall a telegram, as follows: "Marshall, Texas, Feb. 3, 1883. To C. B. Stuart, Jr., Waco, Texas, care of Stuart & Harris, attorneys: John is very low. Come on first train. G. W. STUART." That at the time of delivering to the agent the message he paid 50 cents, — the customary charges for transmitting the same, — and informed the agent of the circumstances requiring the speedy transmission and delivery thereof. That the message was correctly transmitted, and received at appellee's office in Waco, by its agent, at 3 o'clock P. M. on February 3, 1883. That, being in a state of anxiety, and momentarily expecting a telegram from his agent, G. W. Stuart, appellant in person called at the office of appellee in Waco, at 4 o'clock P. M. on February 3, 1883, and asked the agent of appellee if any message had been received by him for appellant, and that the agent told him that none had been received. That he then informed the agent that his brother was sick in Marshall, and that he was expecting a telegram from there in reference to his condition, and that, if it should come, to send it to his office, informing him at the time where his office was. Not having received any telegram, he again, about 9 o'clock on the morning of February 4, 1883, called at appellee's office in Waco, and asked if any message had been received for him, and was told by the agent of the appellee that none had come. That he again instructed the agent to send the telegram, if it should come, to his office. That on the morning of February 5, 1883, the telegram above set out was delivered to him, and that he immediately started for Marshall, and traveled as speedily as he possibly could, but when he arrived his brother John had died, and was buried. That, if the telegram had been delivered to him when he called for it on February 3d, he could have reached Marshall in time to have seen his brother alive; and that, if he had received it when he called for it on the morning of February 4th, he could have reached Marshall in time to have attended the funeral services of his brother; and in consequence of all of which he had suffered great disappointment, grief, and mental anguish. Appellant also alleged that he was on February 3d, and had been for some time, a practicing lawyer in Waco; that his office was in speaking distance of the defendant's office; and that he had his card in the Waco Examiner, a paper having a wide circulation in that city, and his sign as such lawyer was suspended over the pavement in front of his office, in full view of all persons passing; and that he had repaid to G. W. Stuart the amount he paid appellee's agent.

These averments disclose a contract between the appellant and the appellee, by the terms of which the appellee, for a valuable consideration, bound itself to deliver to appellant promptly the message described, a breach of this contract on appellee's part, and actual damage sustained by the appellant, at least in the sum paid to appellee as the consideration for transmitting the message. For the breach of the contract the appellee was liable at all events for nominal damages. Telegraph Co. v. Dryburg, 35 Pa. St. 298. But the only averments in the petition which can at all sustain the amount of the judgment rendered are those which describe the harrowing effects upon the feelings of appellant as the result of the negligence of the appellee. Appellant's agent at Marshall, when he delivered the message for transmission, fully informed the appellee of the meaning of the telegram and the importance of promptly delivering it. The poignant distress suffered by the appellant was therefore proximately, and, in the contemplation of appellee, caused by, and, under the painful circumstances described, naturally would result from. the appellee's negligence. The petition does not disclose a case for exemplary damages. The rule, as stated in Telegraph Co. v. Brown, 58 Tex. 170, perhaps needs to be qualified, but, tested by the rule most liberally interpreted in behalf of appellant, no such case is shown as would justify the court in punishing appellee for the wrongful acts of its agents. Unless, therefore, injury to feeling is a proper element of actual damage, the petition does not sustain the judgment. It was determined by this court in the case of the younger Levy (59 Tex. 547) that we have no forms of action or technical rules which can prevent the plaintiff, upon a statement of the facts of his case as authorized by our system of pleading, from recovering all the damages shown to be sustained. If the facts stated show a breach of contract, and also that the breach is of such character as to authorize a suit as for a tort, all the damages recoverable for the thing done or committed, either in an action ex delicto or ex contractu, may be recovered in the one suit. It is claimed by counsel for appellee that injury to feelings in this kind of suit is held by this court in both the Levy Cases (59 Tex. 543, 563) to be exemplary damages. We do not so understand either of those authorities. In the elder Levy Case it was held that one not entitled to recover nominal damages, as for a breach of contract, nor sustaining any damage to his person, name, or estate, could have no recovery for mental distress alone. In that case the telegraph company had no contract with Levy, had broken no engagement with him, nor violated any contract it had made with any one else for his benefit. It owed him no duty, and violated no right of his; and, though its conduct may have outraged his sensibilities, it had done him no legal wrong. In the other Levy Case the petition was excepted to on the ground that it showed no facts constituting a basis of damages. The exceptions were overruled. The plaintiff recovered, and the defendant, appealing, assigned as error the action of the court in overruling the exceptions to the petition. The petition, like that in this case, was a statement of the facts regardless of the forms of action. "Upon the whole case, as made by the petition and evidence," this court held "that the appellee was entitled to recover whatever damages the proof may justify over and above such sum as he paid for the transmission of the message, and this in the way of exemplary damages," if a case for such damages is made. Whether the damage arising from mental distress was actual or exemplary was not discussed or decided, but it was held that such damage, which in that case, as in this, was mainly the basis of the suit, could be recovered; "otherwise, in a large class of cases, most grievous wrongs may be inflicted in matters as vitally affecting the welfare of individuals as in other matters to which a pecuniary value — a market price — can be fixed; and this in disregard of a duty voluntarily assumed to the public, to secure the due performance of which many privileges not possessed by persons generally are conferred by the state upon the offending party." That mental suffering resulting from an indignity to the person is actual damage, is held by ...