Western Union Tel. Co. v. Simpson

• Decision Date: 26 March 1889
• Citation: 11 S.W. 385
• Parties: WESTERN UNION TEL. CO. <I>v.</I> SIMPSON.
• Court: Texas Supreme Court

11 S.W. 385

WESTERN UNION TEL. CO.

v. SIMPSON.

Supreme Court of Texas.

March 26, 1889.

Commissioners' decision. Appeal from district court, Galveston county.

Action by Ernestine Simpson against the Western Union Telegraph Company for damages for breach of contract to deliver money by telegraph. Verdict and judgment for plaintiff for $1,000 and costs. Defendant appeals.

Wheeler & Rhodes, for appellant. Waul & Walker, for appellee.

ACKER, J.

Appellee's husband died in California, and she sent a message by appellant from Los Angeles, in that state, at 4 o'clock P. M., January 12, 1885, to her agent, R. A. Crossman, in Galveston, Tex., informing him of her husband's death, that she would leave there at 2 o'clock P. M. the next day, and requesting him to send to her $200 by telegraph immediately. When this message was delivered to Crossman, between midnight and daylight on the morning of the 13th of January, it appeared to have been sent from San Francisco, instead of Los Angeles. Crossman went to appellant's office in Galveston, and was informed that the money could not be received by appellant before 9 o'clock A. M. At that hour, Crossman and his clerk, Bullock, went to appellant's office, made the application for the transfer, and delivered the $200, and paid $4.70 tolls to appellant's agents. The money was not received by appellee, and Crossman, being informed by message from her that she had not received it, remitted to her on the morning of January 14th, through the Wells, Fargo Express Company, another $200, which she received in time to leave Los Angeles with the body of her husband at 2 o'clock P. M. on that day. This suit was brought on the 13th day of May, 1885, to recover of appellant damages for its failure to deliver the money as it had contracted to do. The petitions alleged, substantially, that appellee, being in great distress and need of money at Los Angeles, Cal., on the 13th of January, 1885, contracted through her agent at Galveston, with appellant, to transmit to her at Los Angeles $200, paying appellant $4.70 charges therefor; that appellant was informed and knew of her distress and immediate need of money, and contemplated the damages that would result to her from a breach of the contract; that appellant willfully and maliciously neglected to transmit to her the $200, and converted the money to its own use; that pecuniary damage, mental distress, anguish, and mortification were the direct and natural results of the failure to transmit the money, (setting out the facts and circumstances which resulted from the failure to transmit the money, and which produced the mental anguish, distress, and mortification;) that the telegram sent by her to Crossman on January 12th, requesting him to send the money, was no part of her cause of action, and that no damages were claimed by reason of any mistake in that message, but alone for the failure to transmit and deliver the money to her as appellant had contracted to do. Appellee laid her damages at $1,740.

Appellant answered by general demurrer, and special exception to so much of the petition as sought to recover damages for mental anguish. The answer also contained the following special defenses: (1) The stipulations in the printed contract under which appellee's first message was sent, limiting its liability for damages unless the message was repeated, and exempting it from liability for damages unless the claim therefor was presented in writing within 60 days after the message was sent. It was averred that neither of these conditions had been complied with. (2) It was admitted that appellee's message, requesting the money sent, was sent by her from Los Angeles, but when it was delivered to appellee's agent, in Galveston, it appeared to have been sent from San Francisco, instead of Los Angeles. It was averred that this change in the name of the place from which it was sent was caused by an accident to which the business of telegraphy is liable at all times, without negligence upon its part, and which could have been guarded against by having the message repeated. (3) That when appellee's agent expressed to the agents of appellant his surprise that the message from appellee was headed "San Francisco," instead of "Los Angeles," and declared his belief that she was at Los Angeles, appellant's agent then suggested and offered to have the message repeated, but appellee's agent declined to have it repeated, and assumed all responsibility for any inaccuracy in the message, and made his written application to have the money transferred to San Francisco, which appellant did on that day; that the next day, appellant discovered the mistake, and immediately had the money transferred to Los Angeles. The answer admitted liability for $206.33, and averred that the amount had been tendered to appellee's agent, from whom it was received, on the 16th of January. Appellant's special exception was overruled. The trial was by jury, and resulted in verdict and judgment for appellee for $1,000.

By the first assignment of error it is urged that the court erred in overruling the special exception. We think it too well settled in this state to justify elaborate discussion here that mental anguish may constitute an element of actual damage for which compensation may be recovered upon breach of a contract, where such anguish is the direct and natural result of such breach. The liability rests upon the principle that the mental distress was caused by the breach of the contract, and was contemplated as a part of the consequences of such breach at the time the contract was entered into. To authorize a recovery of damages for mental distress resulting from the non-performance of a contract for the payment of money, it must be alleged and proved that the party contracting to make the payment was informed at the time of making the contract of the peculiar condition and circumstances of the party for whose benefit the contract was made, which render the prompt performance of more than ordinary importance, that the party contracting to make the payment may anticipate the more serious consequences of the breach. Appellee alleged that appellant was fully informed of her unfortunate surroundings and urgent need of money at the time the contract was made, and specifically set forth the circumstances brought about by appellant's failure to perform the contract, which circumstances, it was alleged, produced the mental anguish, distress, and mortification. We think the court did not err in overruling the special exception. Stuart v. Telegraph Co., 66 Tex. 586.

Under numerous assignments of error it is contended that appellee's cause of action arose on the mistake in transmitting her message of January 12th, which, when delivered to Crossman at Galveston, gave San Francisco as the...