Western Union Tel. Co. v. Drake

• Citation: 29 S.W. 919
• Parties: WESTERN UNION TEL. CO. v. DRAKE.
• Decision Date: 13 February 1895
• Court: Court of Appeals of Texas

29 S.W. 919

WESTERN UNION TEL. CO. v. DRAKE.

Court of Civil Appeals of Texas.

February 13, 1895.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by C. A. Drake against the Western Union Telegraph Company for delay in delivering a message. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Stanley, Spoonts & Meek, for appellant. R. E. Carswell and Carter & Lemight, for appellee.

HEAD, J.

Defendant in error instituted this suit to recover of plaintiff in error damages on account of its negligent delay in delivering the following message: "To C. A. Gifford, Post Oak, Texas, via Bowie: Perry can't live. Can you come? Answer. [Signed] Mrs. P. W. Drake." The addressee of the message was the brother of the sender, and the damages claimed in the petition are for both mental and physical suffering, alleged to have been sustained by reason of the failure of Gifford to be present at the death and burial of Mrs. Drake's husband. Upon the measure of damages, the court gave the following charge to the jury: "If you find for the plaintiff, it will be your duty to assess her damages at such sum as you believe will be a fair and reasonable compensation to her for the physical suffering, if any, and the mental pain and anguish, if any, suffered or sustained by her by reason of C. A. Gifford not being present at the death and funeral of the plaintiff's husband." There was no evidence of any physical suffering sustained by Mrs. Drake on account of the absence of her brother, and it was therefore error for the court to submit this issue to the jury. Defendant in error, however, insists that, while the giving of this charge may have been abstract error, yet, in view of the evidence, it should not require a reversal of the judgment. The evidence of injury to Mrs. Drake, even from mental suffering, on account of the absence of her brother, is very meager, consisting as it does in the simple statement that her object in sending the telegram "was to have my relatives there, for my benefit, for theirs, and for my husband's consolation, help, and assistance." It has been repeatedly decided in this state to be error to submit to the jury a ground of recovery to sustain which no evidence has been introduced, and that such an error will ordinarily require a reversal of the judgment. Railway Co. v. Rossing (Tex. Civ. App.) 26 S. W. 243; Railway Co. v. French, 86 Tex. 96, 23 S. W. 642; Railway Co. v. Measles, 81 Tex. 474, 17 S. W. 124...