Western Union Tel. Co. v. Carter

• Decision Date: 22 June 1893
• Citation: 22 S.W. 961
• Parties: WESTERN UNION TEL. CO. v. CARTER et ux.
• Court: Texas Supreme Court

22 S.W. 961

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

Supreme Court of Texas.

June 22, 1893.

Error from court of civil appeals of third supreme judicial district.

Action by W. S. Carter and wife against the Western Union Telegraph Company for failure to deliver a message promptly. A judgment for plaintiffs was affirmed by the court of civil appeals, (20 S. W. Rep. 834,) and defendant brings error. Modified.

Walton, Hill & Walton, for plaintiff in error. W. F. Robertson, for defendants in error.

BROWN, J.

This case was tried before the judge without a jury, and findings of fact filed, which were adopted by the court of civil appeals, and, so far as applicable to the questions involved here, are that the telegraph company had offices and operators at Taylor and Smithville, about 50 miles apart. W. S. Carter lived at Taylor. His wife, M. E. Carter, was the daughter of N. B. Garsuch, who died near Smithville on the 4th day of September, 1889. About 6 o'clock of that day, F. S. Faust delivered to the operator at Smithville the following message: "Dated Smithville, 9-4-1889. To W. S. Carter, Taylor: N. B. Garsuch is dead. Answer. F. S. Faust." This message was not delivered to Carter until 11:55 A. M. of the next day. If it had been delivered with reasonable promptness, W. S. Carter and M. E. Carter could have reached the place where the remains were before the burial. They set out as soon as possible after receiving the message, but reached the place after the body had been buried. The body was buried, in the clothes that deceased wore at the time of his death, in an uninclosed lot. W. S. Carter had the body disinterred, and removed to another place, at an extra cost of $20. The operator at Smithville, who received the message, did not know the relationship between Carter and deceased, nor that Carter had a wife. About an hour after the message was transmitted he was informed that Carter was the son-in-law of deceased. The operator at Taylor did not know the facts until the message was delivered. The district court gave judgment for the plaintiff Carter for 25 cents paid for the transmitting of the message, and costs of court, and for the sum of $20, expenses incurred by him in exhuming and removing the body; also, for $1,000 for the mental suffering caused to M. E. Carter by reason of the failure to reach the place before the body was buried, and on account of the place and manner of the burial of her father. The court of civil appeals affirmed the judgment of the district court, and a writ of error was granted to the court of civil appeals by this court.

The plaintiff in error presents this assignment of error for our consideration: "The court erred in its conclusions of law that defendant is chargeable with notice, or is affected with notice, by the terms of the message, of the relationship of either W. S. Carter, who is named, or M. E. Carter, who is not named, in the message, to N. B. Garsuch, or of any other purpose or object of said message than to advise W. S. Carter of Garsuch's death, and to obtain an answer."

As to M. E. Carter the objection is well taken. She is neither mentioned in the message, nor was there any actual notice of her relationship to deceased. Telegraph Co. v. Kirkpatrick, 76 Tex. 217, 13 S. W. Rep. 70; Elliott v. Telegraph Co., 75 Tex. 18, 12 S. W. Rep. 954. The facts of this case are as nearly identical with Telegraph Co. v. Kirkpatrick as it is possible to make two cases with different names and dates. Plaintiffs had no right to recover against the defendant, the telegraph company, for the damages alleged to have occurred to Mrs. Carter, and the judgment of the court was therefore erroneous, and must be reversed.

As to W. S. Carter, the objections presented in this assignment are not well taken. The only case decided by this court that will support the propositions made is that of Telegraph Co. v. Brown, 71 Tex. 723, 10 S. W. Rep. 323, which has been practically overruled by all succeeding cases involving same points. That no doubt may hereafter exist we here expressly overrule that case, in so far as it asserts the proposition that it is necessary that a message must disclose the relationship of the persons named in it. Since the case of Telegraph Co. v. Brown the cases decided in this court have held contrary to the contention of the plaintiff in error. In the cases of Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. Rep. 857; Same v. Feegles, 75 Tex. 537, 12 S. W. Rep. 860; Same v. Moore, 76 Tex. 66, 12 S. W. Rep. 949; Potts v. Telegraph Co., 82 Tex. 545, 18 S. W. Rep. 604; and Telegraph Co. v. Jones, 81 Tex. 271, 16 S. W. Rep. 1006, — the messages conveyed information of serious illness of a person named. In the following cases the information conveyed by the messages related to the death of the party named: Telegraph Co. v. Broesche, 72 Tex. 654, 10 S. W. Rep. 734; Same v. Rosentreter, 80 Tex. 406, 16 S. W. Rep. 25; and Same v. Nations, 82 Tex. 539, 18 S. W. Rep. 709. In the foregoing cases the same questions arose as are here presented, and this court held in each that the telegraph company was chargeable...