Western Union Tel. Co. v. Cooper

• Decision Date: 23 October 1888
• Citation: 9 S.W. 598
• Parties: WESTERN UNION TEL. CO. <I>v.</I> COOPER.
• Court: Texas Supreme Court

Page 598

9 S.W. 598

WESTERN UNION TEL. CO.

v. COOPER.

Supreme Court of Texas.

October 23, 1888.

Commissioners' decision. Appeal from district court, Johnson county; J. M. HALL, Judge.

This action was brought by S. M. Cooper against the Western Union Telegraph Company to recover damages for failure to deliver a message from plaintiff to one Dr. Keating, calling him to attend plaintiff's wife in her confinement. It appeared that the messenger went twice to the doctor's office, and, not finding him, made no further effort to deliver the message. In the mean time plaintiff's wife gave birth to a still-born child. Plaintiff alleged in his petition that, by reason of defendant's negligence in failing to deliver the message, he and his wife were caused great mental suffering and anguish; and that, by reason of the absence of Dr. Keating, his wife suffered more physical pain than she would have done had he been with her, and that the life of the child was lost by reason of the doctor's absence. The trial resulted in a verdict for plaintiff for $2,000, and judgment accordingly; from which defendant appealed, and assigned numerous errors, the most important of which are noted in the opinion.

Stemmons & Field, for appellant. Crane & Ramsey, for appellee.

COLLARD, J.

1. Appellant claims that its demurrers to plaintiff's petition should have been sustained because injury to feelings disconnected from an actual personal injury are exemplary damages, and the facts alleged are not sufficient to recover exemplary damages. The very question raised here was before the supreme court in the case of Stuart v. Telegraph Co., 66 Tex. 580; and the court, after discussing the So Relle Case, 55 Tex. 310, and the two Levy Cases, 59 Tex. 543, 563, the case of Hays v. Railroad Co., 46 Tex. 272, and other authorities, use the following language: "But it is claimed that the mental is an incident to the bodily pain, and that without the latter the former cannot be considered as actual damages. In cases of bodily injury the mental suffering is not more directly and naturally the result of the wrongful act than in this case; not more obviously the consequences of the wrong done than in this case. What difference exists to make the claimed distinction? That it is caused by and contemplated in doing the wrongful act is the principle of liability. The wrong-doer knows that he is doing this damage when he afflicts the mind by withholding the message of mortal illness as well as by a wound to the person." The conclusion derived from the opinion in the case, from which the foregoing extract is taken, is that injury to feelings caused by a failure to deliver a message relating to domestic affairs, where the failure is result of negligence on the part of the company or its servants, is an element of actual damages. The same principle was decided by the commission of appeals in the case of Railway Co. v. Miller, erroneously styled in the reports Railway Co. v. Wilson, 69 Tex. 739, 7 S. W. Rep. 653; and it was held that the right to recover would not depend upon the degree of negligence causing the injury. If the inexcusable negligence of the defendant's servants is found to be the proximate cause of the injury, damages may be recovered commensurate with the injury.

2. The husband is the proper party to bring the suit for such injuries to his wife. She is not a necessary party. Railway Co. v. Burnett, 61 Tex. 638; Railway Co. v. Helm, 64 Tex. 147.

3. We do not think the death of the child before birth, and the grief or sorrow occasioned thereby, can be an element of damages in this character of suit. If it is made to appear from the testimony that Mrs. Cooper suffered more physical pain, mental anxiety, and alarm, on account of her own condition, than she would have done if Dr. Keating had been in attendance upon her, and the failure to secure his services is shown to be due to the want of proper care on the part of defendant's servants, whose duty it was to deliver the message, a fair and reasonable compensation should be allowed for such increased pain and mental suffering; but the death of the child, the bereavement of the parents, and their grief for its loss, cannot be considered as an element of damages. Such damages are too remote. They are the result of a secondary cause, and ought not to be allowed to enter into a verdict. This is not an action under the statute by the parents for the death of a child, and, if it were, injury to the feelings of the parents could not be a basis of a recovery by them. 3 Wood, Ry. Law, 1538, and note 3. Injury to the mother alone, her physical pain, and mental suffering, because of her own condition, would be a proper consideration; and it would be correct to allow proof that the child was still-born, if such fact tended to show that her labor was thereby prolonged, and her suffering so increased.

4. It is impossible to see upon what principle the husband can claim damages for injury to his feelings. His suffering could only be from alarm and sympathy for his wife's suffering. His distress is merely a reflection from her distress, and that might be very considerable, but it is too remote and consequential. She is allowed to recover in this suit, or rather he is, under the forms of law, on account of her injuries of body and mind. To allow him damages for the same injuries would be to allow two recoveries upon the same cause of action. We know of no authority that would justify such a conclusion. The person who suffers the injuries proximately resulting from the wrong done, and such person alone, is entitled to compensation, except in cases where death results, and the cause of action is made to survive to the relatives by virtue of a statute. The husband can sue for such injuries to his wife, but he cannot recover on his own account for his anxiety and sympathy.

5. Dr. Cooper, having shown himself competent to testify as an expert, could give his opinion as to whether the child would have been born alive if he had received medical...