Western Union Tel. Co. v. McMillan
| Decision Date | 27 March 1895 |
| Citation | 30 S.W. 298 |
| Parties | WESTERN UNION TEL. CO. v. McMILLAN et ux. |
| Court | Texas Court of Appeals |
Appeal from district court, Robertson county; John N. Henderson, Judge.
Action by C. R. McMillan and wife against the Western Union Telegraph Company. There was a judgment for plaintiffs, and defendant appeals. Reversed.
Walton & Hill, for appellant. Graham & Bishop and O. D. Cannon, for appellees.
Appellees brought this suit to recover damages suffered by appellee Della McMillan, who is the wife of C. R. McMillan, caused by delay in the delivery of a telegram sent from Franklin, Tex., by W. H. McMichael, addressed to Mrs. Della McMillan, Ennis, Tex., informing her of the death of her brother-in-law, G. M. Beard. The petition charges that, on account of the delay in the delivery of the telegram, Mrs. McMillan suffered mental anguish as follows: $900 for being deprived of attending Mr. Beard's funeral, and $1,000 on account of her distress for not being able to be present to comfort and console her sister, Mrs. Beard, wife of the deceased. At the trial a verdict was rendered allowing damages to the plaintiffs, viz. $200 for failure of Mrs. Della McMillan to be present at the burial and view the remains of G. M. Beard, and $300 for failure to be present and console her sister, upon which verdict judgment was rendered for appellees for $500.
It was decided at the present term by our supreme court, in Telegraph Co. v. Coffin, 30 S. W. 896, that in suits of this character, when the deceased person is not related by blood to the plaintiff, no damages can be recovered for mental suffering unless it be shown that at the time the contract for the transmission of the message is made the telegraph company has notice that a failure to comply with the contract on its part will cause mental suffering to the party complaining. We think the doctrine announced in that case applies to both phases of the case at bar; and, as neither the petition nor the evidence shows that appellant had such notice, the judgment must be reversed.
It is settled in Telegraph Co. v. Neel, 86 Tex. 368, 25 S. W. 15, that a telegraph company can make reasonable rules and regulations for the management of its business, and that, in the absence of a contract taking a case out of such rules, they are binding upon those who deal with the company, whether such patrons have knowledge of the existence of such rules or not. The charge of the court on this subject conflicts with ...
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