Swain v. Western Union Tel. Co.

• Decision Date: 13 February 1896
• Parties: SWAIN v. WESTERN UNION TEL. CO.
• Court: Texas Court of Appeals

34 S.W. 783

SWAIN v. WESTERN UNION TEL. CO.

Court of Civil Appeals of Texas.

February 13, 1896.

Appeal from district court, Grimes county; J. M. Smither, Judge.

Action by John B. Swain against the Western Union Telegraph Company for damages for failure to transmit a message. Judgment for defendant, and plaintiff appeals. Affirmed.

Preston & Spencer, for appellant. Walton & Hill, for appellee.

GARRETT, C. J.

The appellant, joined by his wife, instituted a suit in the district court of Grimes county on the 10th day of May, 1892, for the failure of the telegraph company to transmit and deliver the following telegram: "Italy, ____ 27, 1892. To Dr. Jameson, Navasota, Texas: Give mother medical attention. Send word if needed. [Signed] M. J. Barker." By the contract to send the message, notice of claim for damages was required to be given to the appellee within 60 days, and the suit was based upon a notice, given within the required time, that on March 27, 1892, M. J. Barker, the daughter of John B. Swain and his wife, ____ Swain, had delivered the telegram to be sent, etc., and that, by reason of the failure to deliver the message, Mrs. Swain was without medical attention for about three weeks, by reason of which "the disease with which she was attacked made such progress and inroads upon her physical system and constitution that it is now incurable, and resulting in permanent injury to her," for which they claimed damages to the amount of $10,000. The cause was afterwards removed to the federal court at Galveston, and there dismissed because of the failure of the plaintiffs to comply with a rule requiring them to deposit $25 for costs. After the filing of the suit, and some time during 1892, Mrs. Swain died.

Appellant brought this suit on March 21, 1893, and pleaded as a basis therefor the notice of damages as above stated. He claimed as damages to himself, "great and excruciating mental suffering, to that extent that his own health became injured and impaired," on account of his wife's illness, and his failure to procure medicines and the services of Dr. Jameson for her, and her great suffering. Appellee pleaded in abatement that the appellant had not given notice of his claim for damages, and also demurred to the petition. Upon a trial of the plea in abatement, the suit was dismissed. Whether the plea should have been in abatement, or in bar, can make no material difference upon this appeal. The notice for damages given was for damages sustained...