Western Union Tel. Co. v. Stephens

• Decision Date: 17 January 1893
• Citation: 21 S.W. 148
• Parties: WESTERN UNION TEL. CO. v. STEPHENS.
• Court: Texas Court of Appeals

Page 148

21 S.W. 148

WESTERN UNION TEL. CO. v. STEPHENS.

Court of Civil Appeals of Texas.

January 17, 1893.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by R. H. Stephens against the Western Union Telegraph Company for failure to transmit a message. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

W. W. Wilkins, for appellant. Potter, Potter & Mathis, for appellee.

STEPHENS, J.

Conclusions of fact: This appeal is from a verdict and judgment recovered by appellee, in the sum of $1,000.25, for the negligent failure on the part of appellant to transmit and deliver a telegraphic message from Ardmore, Ind. T., to Dr. Howard, at Sanger, Tex. On September 14, 1890, appellee and his wife having a very sick child at Ardmore, whose name was Maggie, and being desirous of securing the immediate attendance of Dr. Howard, who was a practicing physician at Sanger, and the grandfather of the child, determined to summon him by telegram. To accomplish this purpose, appellee on that day delivered to appellant's agent, addressed to Dr. Howard, at Sanger, the following message: "Maggie is worse. Come at once." He paid the usual toll, and informed the agent of the importance of the message, and the relationship of the parties. The agent promised to transmit the message promptly, if not on that evening, which was Sunday, at least early the next morning. He hung it serenely on a hook in the office, and no further attention seems to have been paid to it. The distance to Ardmore was about 60 miles, and there were two trains a day each way. Appellee met each of these trains for four days, in expectation of the arrival of Dr. Howard. He did not send an additional message till the 18th, in response to which Dr. Howard, early on the morning of the 19th, arrived at Ardmore. The excuse for not sooner sending this message on the part of appellee was that, as Dr. Howard was a practicing physician, he supposed that owing to absence from home he had not received the first message. The child, having steadily grown worse, was, on the arrival of Dr. Howard, entirely beyond the reach of medical aid, and died on the 21st of September. We conclude from the evidence contained in the record (1) that appellant was guilty of gross negligence in failing to transmit and deliver the message; (2) that the absence of Dr. Howard for the space of four days was the proximate result of this negligence; (3) that thereby the mental anguish of appellee and his wife, on account of the sickness and death of their child, was materially augmented; (4) that this increased mental suffering did...