Western Union Tel. Co. v. Smith

• Decision Date: 14 December 1895
• Citation: 33 S.W. 742
• Parties: WESTERN UNION TEL. CO. v. SMITH.
• Court: Texas Court of Appeals

33 S.W. 742

WESTERN UNION TEL. CO. v. SMITH.

Court of Civil Appeals of Texas.

December 14, 1895.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Action by Horace F. Smith against the Western Union Telegraph Company to recover damages for delay in delivering a dispatch. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant's messenger, at the place to which the dispatch was sent, testified that, on the same day the message was received, he got the corrected address (the sender having given the wrong street number), and took it to the number indicated; that he found the house vacant, and made no inquiries, except at the post office, as to the whereabouts of the addressee.

This case has been before this court on a former appeal, and was reversed and remanded. 26 S. W. 216. Upon the trial from which this appeal is taken, the same pleadings were used, and the statement of the case as made in Justice Rainey's opinion on former appeal will serve as a correct general statement of the case as now presented. It is as follows: "On May 13, 1891, W. S. Smith delivered to the Pacific Postal Telegraph & Cable Company, at Arlington, in the state of Washington, for transmission to his brother, Horace F. Smith, appellee, at Corsicana, Tex., the following telegram: `Arlington, Wn., May 13, 1891. Horace F. Smith, 219 W. Collin St., Corsicana, Texas: Father died last night, at Steilacoom. Have you any wishes in regard to the funeral? Answer quick. W. S. Smith.' On the same day, this telegram reached Corsicana, over the line of the Western Union Telegraph Company, but was not delivered until about the 13th day of June, 1891, when appellee called for it at appellant's office at Corsicana. Appellee brought suit against the Western Union Telegraph Company for the failure to deliver the said message, alleging, as a basis for damages, that he was deprived of the privilege of attending his father's funeral, and giving directions as to the time, place, and manner of same, and also deprived of the privilege of having the remains prepared for shipment to New Orleans, La., and placing them beside those of his deceased mother. Appellant pleaded a general denial, and specially pleaded `contributory negligence on the part of the sender, who was the agent of plaintiff, in failing to correctly and properly address the message, and in placing upon same an address other than the true address of plaintiff, whereby the agent and employés of defendant were misled as to the whereabouts of plaintiff, and so were unable to deliver the message to him.'"

The judgment was reversed upon the former hearing upon two grounds: (1) Error in the charge of the court upon the burden of proof; (2) error in submitting as an element of damages the matter of plaintiff's being deprived of the privilege of having his father's remains embalmed, and shipped to Louisiana for burial. No exceptions to the pleadings appear to have been urged upon the last trial. Verdict and judgment for plaintiff in the sum of $1,610.74 were rendered, and an appeal is again prosecuted by the telegraph company. The only contested issues of fact arise upon the questions of the negligence of the company in failing to deliver the message in a reasonable time, whether the plaintiff would have attended the funeral of his father had he received the message promptly, and the amount of damage sustained by the plaintiff. The evidence was amply sufficient to justify the jury in concluding that the company was negligent in failing to deliver the message in a reasonable time; that plaintiff was thereby prevented from attending his father's funeral; that he would have attended it had the message been promptly delivered; and that he suffered in consequence of such negligence mental anguish to a degree sufficient to entitle him to the sum awarded by their verdict as actual damages.

Field, Brown & Camp, for appellant. McClellan & Prince and Jink Evans, for appellee.

FINLEY, J. (after stating the facts).

Appellant's first assignment of error: "The court erred in permitting the plaintiff to testify, over the objections of defendant, that if the message was delivered to him promptly when received, that he would have left at once for Steilacoom, Washington, in order to have been present at his father's burial, and to give direction in relation to his remains, and that, by reason of the failure of defendant to deliver said message promptly, he was unable to attend his father's burial, and consequently suffered great mental anguish, for the reason that defendant was not advised from the reading of the telegram that plaintiff desired to attend his father's funeral; but, on the contrary, defendant was advised by said telegram that the sender of the telegram sought only to know from plaintiff if he (plaintiff) had any wishes in regard to his father's funeral, and to answer quick; and that plaintiff's wish to attend his father's funeral, and his claim for damages for being deprived of that privilege, was and is not such a claim for damages as were incidental to and which might be reasonably supposed to have entered into the contemplation of the parties at the time the contract was made." The language of the message is: "Father died last night, at Steilacoom. Have you any wishes in regard to the funeral? Answer quick." It is uniformly held in this state that the telegraph company is put upon notice of the relationship of the parties named in the message. The company knew then that the deceased was the father of the addressee of the message; that the sender was the brother; and that the addressee was interested in the subject-matter of the message,—the burial of his father. It is usual and customary in this country for the relatives of a deceased person to be present at the burial, and absence of a near relative usually prompts inquiry as to the reason of such absence. It is a mark of respect and affection that is expected by the public, and a privilege much prized by the relative. In view of these facts, what could be more probable than the desire of the son to attend the funeral of his father? Such is the usual desire and the customary action of the relative. It is the one thing to be expected in the ordinary course of things, and the very first idea that the message would suggest. The evidence was properly admitted. Telegraph Co. v. Carter, 85 Tex. 580, 22 S. W. 961; Telegraph Co. v. Nations, 82 Tex. 539, 18 S. W. 709; Potts v. Telegraph Co., 82 Tex. 545, 18 S. W. 604.

The second and third assignments relate to the admission of the same evidence, and it is urged that it was not admissible under...