Western Union Tel. Co. v. Carter

• Decision Date: 14 October 1892
• Parties: WESTERN UNION TEL. CO. v. CARTER <I>et al.</I>
• Court: Texas Court of Appeals

20 S.W. 834

WESTERN UNION TEL. CO. v. CARTER et al.

Court of Civil Appeals of Texas.

October 14, 1892.

Appeal from district court, Williamson county.

Action by W. S. Carter and another against the Western Union Telegraph Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by FISHER, C. J.:

The appellees sued appellant for damages caused by the failure to deliver promptly to W. S. Carter a message announcing the death of his father-in-law, whereby he was damaged by having to disinter the remains of deceased, and his wife was prevented from attending funeral and having remains properly prepared for burial, and seeing deceased before final burial. The defenses were made by demurrer, general and special denials, and pleas of contributory negligence. The trial was before the court without a jury, and resulted in a judgment for plaintiff for $1,020.25.

The court below found the facts as follows, which we adopt as the findings of fact of this court: "Findings of facts: (1) On the 4th day of September, 1889, N. B. Gorsuch, aged seventy-eight years, suddenly died near the town of Smithville, Bastrop county, Texas, fifty miles distant from the city of Taylor, in Williamson county, Texas. (2) Soon after said death, F. S. Faust, as agent for plaintiff W. S. Carter, delivered to defendant's agent, operator, and manager at Smithville a telegraphic message in words and figures as follows: `Dated Smithville, Texas, 9—4, 1889. To W. S. Carter, Taylor: N. B. Gorsuch is dead. Answer. [Signed.] F. S. FAUST,' — which message defendant, by its said agent and manager, received, and obligated itself legally within a reasonable time to transmit to said city of Taylor and with reasonable diligence there deliver to said Carter. (3) That said Carter was then residing in and was in said Taylor, and by the exercise of ordinary diligence said message could have been delivered to him within a reasonable time. (4) That through and by the negligence of defendant, its agents and employes, said message was not delivered to said Carter within a reasonable time. That, after the expiration of such reasonable time, he called at the defendant's place of business, in Taylor, and inquired for said message, and it was then delivered to him, and he paid defendant therefor the sum of twenty-five cents. (5) That N. B. Gorsuch was the father of plaintiff M. E. Carter, and, had said message been delivered by defendant within a reasonable time, she and her husband, W. S. Carter, would, by taking the early morning train from Taylor, have been able to reach Smithville on September 5, 1889, before the burial of said Gorsuch. (6) That said Gorsuch was, on the afternoon of September 5th, placed in a coffin, with the same clothes on that he wore when he died, and his hat and cane placed in the coffin also, and was by said Faust and a few of his neighbors buried in an uninclosed, secluded country graveyard. (7) That when plaintiffs learned of the death of said Gorsuch they went to Smithville, and the place where he died, as soon as they reasonably could, and did not arrive until after the remains of said Gorsuch had been buried as aforesaid. (8) That it was through the negligence of defendant, its agents and employes, without contributory negligence on the part of the plaintiffs, or either of them, that said message was not delivered within a reasonable time, and that plaintiffs did not reach the place where said Gorsuch died until after his burial. (9) That when defendant, by its agent, operator, and manager at Smithville, entered into the aforesaid contract for the transmission and delivery of said telegraphic message, defendant, its agents and employes, had no knowledge or notice other than is disclosed by the face of said message of the relationship existing between plaintiffs and said N. B. Gorsuch, or the objects intended to be accomplished thereby. That about one hour after said contract had been entered into, and after said message had been transmitted to and received by defendant's operator at Taylor, said agent at Smithville, who made the contract, was apprised of the fact that W. S. Carter was the son-in-law of the said Gorsuch, but defendant's operator, messenger, and other agents at Taylor are not shown to have known of such relationship until after the message was delivered to Carter, and it is shown that the operator and messenger at Taylor did not know of such relationship until Carter got the message, which was about 11:30 A. M., September 5, 1889. (9½) September 4 and 5, 1889, the Western Union Telegraph Company was operating a telegraph line for hire from Smithville, Bastrop county, to Taylor, Williamson county, and had an office at each of said points, and held itself out as ready to receive and transmit telegraphic messages for the public for hire. (10) In addition to the twenty-five cents paid by Carter for the message, he paid out, in causing the exhumation of and removal and reinterment of the remains of said Gorsuch, the sum of $20 over and above what it would have cost him and what he would have expended to have removed and buried said remains had he arrived before their burial by Faust. (11) In addition to the sorrow and grief which Mrs. Carter necessarily suffered because of the death of her father, her failure to reach Smithville in time to attend the funeral and pay the last sad tribute due from the living child to the dead parent, and the manner and place of his burial, caused her to suffer further mental pain and anguish to...