Western Union Tel. Co. v. Kerr

• Decision Date: 19 October 1893
• Citation: 23 S.W. 564
• Parties: WESTERN UNION TEL. CO. v. KERR.
• Court: Texas Court of Appeals

23 S.W. 564

WESTERN UNION TEL. CO. v. KERR.

Court of Civil Appeals of Texas.

October 19, 1893.

Appeal from district court, Colorado county; George McCormick, Judge.

Action by Mollie J. Kerr against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Walton, Hill & Walton, for appellant. Foard, Thompson & Townsend, for appellee.

WILLIAMS, J.

This is an appeal from a judgment in favor of appellee against appellant for damages for negligent failure of the latter to deliver a telegraphic dispatch. The circumstances out of which the action arose were as follows: Dr. Kerr, the husband of appellee, was ill at his home at Waelder, Tex., and had secured the services of Dr. Jones, of Gonzales, as his physician. Dr. Jones had visited Dr. Kerr, and had prescribed a course of treatment, and had returned to his home at Gonzales, leaving Dr. Henderson, of Waelder, in charge of the patient, with directions to administer the remedies prescribed, and with instructions that, in case the patient's condition should grow worse, to telegraph him, (Dr. Jones,) in order that he might return. On April 10, 1891, Dr. Henderson and Mrs. Kerr became alarmed at the unfavorable progress of the disease, and Dr. Henderson delivered to the agent of appellant at Waelder the following message for transmission: "To Dr. J. C. Jones, Gonzales, Texas. Come at once, if able, to see Dr. Kerr. [Signed] J. M. Henderson." This message was not delivered to Dr. Jones at Gonzales until the next day. The exact time of day at which the delivery took place is involved in a conflict of testimony.

This suit was brought by appellee to recover compensation for mental anxiety and suspense experienced by herself, as the result of the failure of Dr. Jones to arrive, as she expected. She alleged that the message was sent by Dr. Henderson as her agent, and for her benefit, and the petition charged that the operator at Waelder "was well aware of the importance of said telegram at the time;" but there was no allegation that the agent knew that Dr. Henderson was acting as the agent of Mrs. Kerr, or that the telegram was intended for her benefit. It appeared from the petition that the cause of action accrued during the lifetime of Dr. Kerr, and that the sickness from which he was suffering at the time resulted in his death. Defendant demurred generally and excepted specially to the petition, on the grounds, among others, first, that plaintiff could not maintain the action, inasmuch as the right of recovery, if any, belonged to the community estate of herself and her deceased husband, and there was no allegation as to whether or not the husband left children, and whether or not there was an administration, or necessity for one, upon his estate; and, second, that the damages claimed from mental suffering, resulting to her from the nondelivery of the message, did not appear to have been within the contemplation of the parties. The assignments which present as error the overruling of the general demurrer and these exceptions raise the principal questions involved in this appeal.

First. A cause of action which accrues for a wrong to the wife, before the death of the husband, is undoubtedly the common property of both. Railway Co. v. Burnett, 61 Tex. 638; Railway Co. v. Helm, 64 Tex. 147; Potts v. Telegraph Co., 82 Tex. 545, 18 S. W. Rep. 604. The question here presented was raised and was involved in the decision in the case last cited, and was decided against the position of appellant. The husband, while living, is the manager and representative of the community estate, and suits for the enforcement of rights which belong to it must be brought by him. After his death, the wife, who survives him, is placed by the law, in most respects, in the attitude of a surviving partner. As such, she may retain possession of the common estate, and may pay debts with which it is chargeable, and for this purpose may dispose of assets of which it is constituted. She may be sued by creditors holding debts against the community estate, and judgments against her will establish charges against it, and may be satisfied out of it. Carter v. Conner, 60 Tex. 52; Hollingsworth v. Davis, 62 Tex. 438; Leatherwood v. Arnold, 66 Tex. 414, 1 S. W. Rep. 173. She may exercise this control over the community estate until the appointment of an administrator upon the estate of her husband. Having these powers, and being subject to these liabilities, it would seem to follow necessarily that she should be allowed to bring suits to collect and preserve the community estate. Even heirs may bring such actions as are necessary to preserve the estate inherited from the ancestor. Walker v. Abercrombie, 61 Tex. 69. The survivor of the marital partnership does not occupy to the estate the relation simply of an heir. His or her rights and powers are not derived from the deceased by inheritance, but originate in the acquisition of the community property under the laws by which the title and powers of the husband and wife are defined. The rules of law which limit the rights of heirs to sue are not altogether applicable. Ordinarily, heirs cannot sue upon a cause of action which accrued to the ancestor, but suit must be brought by an administrator or executor. But an administration is only necessary in order to pay debts. In case of a community estate, where one of the spouses survives, if debts exist, that very fact would authorize such survivor to devote to their payment the community property, and the power to collect the assets for that purpose would result. Children of a deceased husband, it is true, would inherit his half interest in community property, but would inherit it subject to the wife's power to control it for...