Western Union Tel. Co. v. Wood

• Decision Date: 30 May 1893
• Docket Number: 56.
• Citation: 57 F. 471
• Parties: WESTERN UNION TEL. CO. v. WOOD.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F. 471

WESTERN UNION TEL. CO. v. WOOD.

No. 56.

United States Court of Appeals, Fifth Circuit.

May 30, 1893

Statement by PARDEE, Circuit Judge:

The defendant in error brought his action against the plaintiff in error in the district court of Coryell county, state of Texas, and caused summons to be issued, returnable to the January term, 1892, of said court. On the petition of the plaintiff in error the case was duly removed to the circuit court of the United States for the northern district of Texas. After such removal the plaintiff, defendant in error here, filed his first amended original petition, in lieu of all other petitions, upon which the case was tried, and which reads as follows: 'Now comes A. Wood, plaintiff in above-styled cause, complaining of defendant, the Western Union Telegraph Company, and files this, his first amended original petition, in lieu of his original petition herein and for amendment shows the court that plaintiff resides in Coryell county, Tex.; that the defendant is a body corporate duly incorporated, and has an office and agent, A. W. Lyman in Gatesville, Coryell county, Tex.; that said defendant is doing business in the state of Texas, and engaged in transmitting messages for hire; that the said defendant corporation now owns and operates, and did so own and operate, a telegraph line, on the 22d day of October, 1891, from the town of McGregor, in the county of McLennan, state of Texas, to the town of Gatesville, in Coryell county, Tex.; that a brother of the plaintiff, G. W. Wood, resided in Jefferson, Marion county, Tex., at which point the defendant was also operating its said line of telegraph; that about said date the said brother, G. W. Wood, became very ill, and desiring the presence of plaintiff, to comfort him in his last illness, and to settle important business matters, he procured a telegram to be sent to his son, John A. Wood, who resided in McGregor, McLennan county, Tex., requesting the presence of his said son and plaintiff's nephew, and requesting said son to notify plaintiff of his said illness; that on the 22d day of October, 1891, the said John A. Wood, in response to said telegram sent him by his father's request, and as the agent and acting for plaintiff, delivered to the agent of defendant, in McGregor, Tex., a telegram substantially as follows: 'To A. Wood, Gatesville, Texas: Received telegram. Pa is very low. Asked to wire you. John A. Wood.' Plaintiff shows that the person referred to as 'Pa', in said telegram, was the said G. W. Wood, and that said G. W. Wood died at his home in Marion county, Tex., on the ___ day of October, 1891; that, at the time said message was delivered to defendant's agent in McGregor, the same was paid for by John A. Wood; that the price paid for said telegram was the amount demanded therefor by the agent of defendant, the same being the usual and customary charges for such services, viz. twenty-five cents; that said message was correctly transmitted and received at the office of defendant in Gatesville, Tex., at twenty-two minutes past eleven o'clock A. M. on the day same was sent; that the plaintiff then, and for a long time prior to the date of said message, resided within the corporate limits of the town of Gatesville; that his residence is within a half mile of defendant's office, and that he and his residence are well known to defendant in Gatesville, and to almost every inhabitant of said town; that plaintiff was in said town, and about home, all said day, and plaintiff shows that notwithstanding he was well known, and had his place of residence in said town, and that defendant knew the importance and contents, and that the words and contents of said message to plaintiff apprised defendant of the importance thereof, and that the importance of same was made known to defendant at McGregor, by the message received by John A. Wood, and by John A. Wood apprising defendant's agent thereof when sending same, the said defendant not only failed to deliver same promptly, but did not deliver same at all; that defendant's failure to deliver said telegram as it had contracted to do was occasioned by its own willful and careless conduct and negligence. Plaintiff shows that had defendant promptly delivered said telegraph, or had they delivered same at any time before the hour of 2 o'clock P. M. on the day it was received, plaintiff could and would have started on his way to see his brother by the train which left Gatesville at half past two o'clock, and would have reached his brother's residence, and been with him, two days before his death; that, had said telegram been delivered at any time before said hour on the day after it was received, he could and would have been with his said brother at least one day before his death. Plaintiff further shows that at the time of the death of said G. W. Wood there existed certain business transactions, of great importance and value, between him and plaintiff, which were in an unsettled condition, and by his death the same remains to be settled with his heirs, which will occasion much expense, time, and trouble, to plaintiff's great damage, and which have caused plaintiff distress and worry of mind; that by reason of defendant's willful and careless negligence this plaintiff was deprived of the privilege of being at the bedside of his brother in his last illness, and comforting him in his death, and from attending his funeral and burial, and by his presence comforting and consoling the bereaved family of his deceased brother, to his great distress and mental agony and pain. And plaintiff says, by reason of all of said allegations herein set out, he has been damaged by said defendant in the full sum of twenty-five hundred dollars actual damages, and on account of defendant's willful conduct and gross negligence, in failing to deliver said telegram, he has been damaged in the further sum of twenty-five hundred dollars as exemplary damages. Wherefore, plaintiff prays for judgment for said sum of twenty-five hundred dollars actual damages, and twenty-five hundred dollars exemplary damages, and costs of suit; and he prays such further relief, both legal and equitable, general and special, as he may be entitled to, and, in duty bound, will ever pray,' etc.

To this petition the plaintiff in error, defendant in the court below, filed its first amended original answer in lieu of all other pleas theretofore filed in the case, and therein, as permitted by the practice in the state of Texas, first demurred generally to the plaintiff's petition as insufficient in law, then specially demurred:

(1) That in so far as plaintiff seeks to recover damages for alleged failure to arrange business matters, and for alleged mental suffering and distress, his petition is insufficient, for the reason that such damages are remote, uncertain, and not within contemplation of the parties at the time, and not an element of actual damages in the case, and, under the allegations of the petition, not recoverable at all.

(2) That, in so far as plaintiff seeks a recovery for damages therein for alleged mental distress, said petition is insufficient, in this: that the amount claimed is and was below the jurisdiction of the circuit court.

The defendant also filed a general denial or general traverse of the allegations of the petition, and a special plea setting up the contributory negligence of the plaintiff; also, a special plea setting up the special rules and regulations of the defendant, governing the sending of messages, under which it only undertook to make free delivery, in towns the size of Gatesville, within a radius of half a mile of its office, and averred that the plaintiff did not, at the time said message was received, nor at any time, reside within half a mile of said office, and that no arrangements were made, and no contract entered into, to make delivery of said message outside of said limits, and no extra compensation was ever paid or guarantied for the special delivery of said message outside of said limits.

On the trial of the cause there was a verdict for the plaintiff in the sum of $1,250, and judgment was entered thereon. The plaintiff in error thereupon brought the case to this court for review, assigning errors as follows: 'First assignment of error: The court erred in overruling general demurrer of the defendant to plaintiff's petition, because said petition failed to show any cause of action, of which said court could have, hold, and maintain jurisdiction, all of which appears at large by inspection of said petition, and said demurrer thereto. Second assignment of error: The court erred in overruling the first special exception and demurrer of defendant to plaintiff's said petition. Third assignment of error: The court erred in overruling the second special exception of defendant to plaintiff's said petition. Fourth assignment of error: The court erred in overruling the third special exception of defendant to plaintiff's said petition. Fifth assignment of error: The court erred in overruling the fourth special exception of defendant to plaintiff's petition.'

George Denegre, Walter D. Denegre, T. L. Bayne, Gaylord B. & Frank B. Clark, Jr., and M. A. Spoonts, (George H. Fearons, Stanley, Spoonts & Meek, and E. R. Meek, on the brief,) for plaintiff in error.

S. B. Hawkins, John Clegg, and E. A. McDonald, (McDowell, Milker & Hawkins, White & Taylor, and Clegg & Thorpe, on the brief,) for defendant in error, among other authorities, cited the following line of Texas cases, which are referred to, but not cited, in the opinion:

Telegraph Co. v. Nations, 82 Tex. 539, 18 S.W. 709; Stuart v Telegraph Co., 66 Tex. 580-586, 18 S.W. 351; Railway Co. v. Levy, 59 Tex. 542; Telegraph Co. v. Broesche, 72 Tex. 654, 10...