Western Union Tel. Co. v. Linn

• Decision Date: 26 April 1894
• Citation: 26 S.W. 490
• Parties: WESTERN UNION TEL. CO. v. LINN.
• Court: Texas Supreme Court

26 S.W. 490

WESTERN UNION TEL. CO. v. LINN.

Supreme Court of Texas.

April 26, 1894.

Error from court of civil appeals of third supreme judicial district.

Action by Henry A. Linn against the Western Union Telegraph Company to recover damages caused by delay in delivering a telegram. There was a judgment of the court of civil appeals (23 S. W. 895) affirming a judgment for plaintiff, and defendant brings error. Reversed and rendered.

Walton, Hill & Walton, for plaintiff in error. George F. Pendexter, for defendant in error.

BROWN, J.

H. A. Linn sued the telegraph company to recover damages for mental suffering alleged to have been caused to him by the negligent failure to deliver in a reasonable time the following message, which was delivered to the agent of defendant at Benavides, Tex., January 25, 1891, for transmission: "January 25th. Benavides, Texas. To H. A. Linn, 1607 Lavaca, Austin: Grace is very low. Can you come, and bring Maude? [Signed] Kate." Petition alleged that Grace was a sister to plaintiff, and that she died on the same day that the message was delivered to defendant's agent at Benavides; that Kate and Maude were also sisters to the plaintiff; that the message was received by defendant's agent at Austin, over its wires, at 6:30 p. m. on the day of its date, but was not delivered until the next day, the 26th, at 9 o'clock a. m., and soon after receiving the said message he received from defendant another message, informing him of his sister Grace's death, when, realizing that it was too late to reach Benavides in time for the funeral, he sent a message informing the family that the message was received too late for him to attend. The petition contained allegations sufficient to show the negligence of the defendant, and also the following specific allegations, upon which the questions involved in the demurrer arise: "Plaintiff avers that if defendant had promptly delivered said message to him on the day it was received, as was its duty to do, that plaintiff would at once have sent a reply thereto, notifying his said sister Kate, and his brother-in-law, the husband of said Grace, of his intentions to leave Austin on the morning of January 26, 1891, for the purpose of visiting his said sister Grace, which he avers that he would have done, but for the negligence and carelessness of the defendant, as above set forth. And plaintiff avers that, had said message been promptly delivered to him, he could and would have left Austin on the morning of January 26, 1891, and would have reached Benavides by eleven o'clock on the morning of January 27, 1891; that his said sister Grace was buried at 4:30 o'clock on January 26, 1891, but that if said telegram had been promptly delivered to him by the defendant, so that he would have the opportunity of replying thereto on January 25th, and of announcing his intention of a visit to his said sister in response to said telegram, that the burial of said Grace would have been deferred until the afternoon of January 27, 1891, to enable plaintiff to be present thereat. Plaintiff further avers that the train leaving Austin on January 26, 1891, upon which he would have traveled to Benavides, departed before the delivery of said telegram to him by defendant, and that no other train left Austin, upon which he could have made the trip, until the morning of January 27th; so that, after the receipt of said telegram by plaintiff, it was impossible for him to reach Benavides until about 11 o'clock a. m. of January 28, 1891, to which time, plaintiff avers, it was impossible to defer the burial of his said sister. Plaintiff avers that but one train left the city of Austin on January 26, 1891, upon which it was possible for him to make direct connection with other lines of railroad running between said city and the town of Benavides. So plaintiff avers that on the delivery of the said telegram to him, and on the receipt of another telegram within one hour thereafter, informing him of the death of his said sister Grace, he realized that, owing to the negligence of the defendant in failing to deliver said first-described telegram, that it would be impossible for him to reach Benavides in time to attend the funeral of his said sister. Plaintiff further avers that the said Grace was his eldest sister, and that the strongest feelings of love and affection had always existed between them, and that plaintiff suffered great mental pain and disappointment at not being able to attend her burial, as he would have done, had the defendant promptly delivered the message sent him by his sister Kate, aforesaid." The defendant filed a general demurrer to the amended petition, and also six special exceptions, in which the matter of objection is presented in different forms, but are, in substance: First, that the message did not notify defendant of the relationship between plaintiff and Grace, the person reported therein to be very low, or that there was any relationship existing between them; second, that the damages claimed are not such as the parties are deemed to have contemplated when the contract was made, or that might have been foreseen as the probable result of a breach of the contract, and that the injury alleged is not the proximate result of the negligence alleged. Defendant also pleaded, specially, that the contract entered into for sending the message contained this clause: "It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." Plaintiff excepted to the special answer of defendant, because it could not by contract defeat a recovery for the negligence of its servants in not delivering the message within a reasonable time, and the said plea constituted no defense to this suit. The court sustained the plaintiff's exceptions to the answer, and overruled the defendant's demurrer and exceptions to the plaintiff's petition. Upon trial, judgment was given for plaintiff against the defendant, from which appeal was taken, and the court of civil appeals affirmed the judgment of the district court.

The court properly...