Western Union Tel. Co. v. Moore

• Decision Date: 07 February 1890
• Citation: 12 S.W. 949
• Parties: WESTERN UNION TEL. CO. <I>v.</I> MOORE.
• Court: Texas Supreme Court

Page 949

12 S.W. 949

WESTERN UNION TEL. CO.

v. MOORE.

Supreme Court of Texas.

February 7, 1890.

Appeal from district court, Walker county.

Stewart & Stewart, for appellant. McKinney & Leigh, for appellee.

GAINES, J.

In November, 1888, the appellee, who then resided at Trinity, Tex., had a sick brother at Dallas. The brother at the time resided with his sister at the latter place. Appellee, being informed of his brother's illness, wrote to his sister, and requested her to give him notice by telegraph of his brother's condition, in case he should grow worse. On the 19th day of the month above named, the sister caused a message signed by her to be delivered to the appellant's agent at Dallas, for transmission to the appellee at Trinity, which was in the following words: "Billie is very low; come at once." The message was not promptly delivered. The company's agent at Trinity gave it to a porter, to be handed to appellee, but the porter, not having found him, returned it to the agent, who deposited it in the post-office. The appellee received it on the 20th, at about 7 o'clock in the evening. He immediately went to Dallas, and found his brother dead. He testified that, if the message had been promptly delivered, he would have reached Dallas in time to have seen his brother alive. Appellee brought this suit to recover damages for his mental suffering alleged to have been caused by the default of the telegraph company in not delivering the message promptly, and by his consequent failure to arrive at the bedside of his brother in time to be with him in his last moments. The case appears to have been tried upon the theory the plaintiff could not recover beyond the amount paid for the transmission of the message, unless he should show by extrinsic evidence that the company had notice that the person named in the message was his brother. It is true that the damages recoverable in an action of this character are limited to such as may reasonably be presumed to have been in the contemplation of the parties at the time the contract is made. But in the case of Telegraph Co. v. Adams, ante, 857, (decided at the last Tyler term,) it was held, in effect, that a recovery could be had for mental suffering resulting from a failure to deliver with diligence a telegraphic message announcing the sickness or death of a relative, provided the language employed in the message was reasonably sufficient to put the company upon inquiry as to the relationship between such person and the party addressed, and to apprise them that its object was to afford the party an opportunity to attend upon his relative in his last sickness, or to be present at the funeral in the case...