Western Union Tel. Co. v. Brown

• Decision Date: 13 November 1888
• Parties: WESTERN UNION TEL. CO. <I>v.</I> BROWN.
• Court: Texas Supreme Court

10 S.W. 323

WESTERN UNION TEL. CO.v.

BROWN.

Supreme Court of Texas.

November 13, 1888.

Appeal from district court, Hopkins county; B. W. FOSTER, Special Judge.

Stemmons & Field, for appellant. Leach & Templeton, for appellee.

WALKER, J.

This is an appeal from a judgment for $275 in favor of the appellee against appellant. The suit was brought the 15th day of March, 1887, by Brown, to recover of the appellant, the Western Union Telegraph Company, $10,000 damages for delay in transmitting and delivering to him a telegram sent to him from Hallville, Tex., on the 11th day of December, 1886, by one Wilson Livingston, in following language:

                                                       "HALLVILLE, TEXAS, Dec. 11th, 1886
                

"J. M. Brown, Sulphur Springs: Willie died yesterday evening at six o'clock; will be buried at Marshall, Sunday evening.

                       [Signed]                                         "WILSON LIVINGSTON."
                

Plaintiff alleged that Livingston acted as his agent in sending the message, and that by "Willie," named in said message, was meant Willie Brown, a brother of appellee, and that the price paid for sending said message was paid by appellee, in the following manner: That the sum of 45 cents paid to the defendant for transmitting and delivering the said telegram was money belonging to the estate of said Willie Brown, one-third of which plaintiff owned as an heir, and the other two-thirds by payment to the other two heirs, there being no administration, nor need of any. The plaintiff alleged that the dispatch was not delivered until noon of the 12th December, 1886, and by reason of said delay, caused by the willful neglect and failure of defendant to transmit and deliver said message, he was prevented from being present at the burial of his brother, whom he had raised and cared for from childhood, and from receiving the consolation and condolence of his sister in his grief; whereby he suffered great disappointment, grief, and mental anguish, etc. Defendant answered by general demurrer, special demurrer, and general denial. The demurrers were overruled, to which defendant excepted.

The exceptions were: "(1) Because the petition on its face failed to state any cause of action, in this, that plaintiff sues for an injury to his feelings in tort, he being the addressee of the message, and no party to the contract under which said message was accepted and transmitted, and fails to state facts necessary to recover in tort. (2) There is nothing in the...