Western Union Telegraph Co. v. McCormick

• Decision Date: 26 February 1920
• Docket Number: (No. 1069.)
• Citation: 219 S.W. 270
• Parties: WESTERN UNION TELEGRAPH CO. v. McCORMICK.
• Court: Texas Court of Appeals

219 S.W. 270

WESTERN UNION TELEGRAPH CO. v. McCORMICK.

(No. 1069.)

Court of Civil Appeals of Texas. El Paso.

February 26, 1920.

Rehearing Denied March 11, 1920.

Appeal from District Court, Dawson County; W. R. Spencer, Judge.

Action by C. H. McCormick against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Francis R. Stark, of New York City, and Veale & Lumpkin, of Amarillo, for appellant.

McGuire & Warren, of Lamesa, for appellee.

HIGGINS, J.

Appellee brought this suit against appellant to recover damages for mental anguish suffered by him on account of the alleged failure to transmit and deliver a telegraphic message sent from Lamesa, Tex., to him at Ranger, Tex., reading as follows:

"To C. H. McCormick, Ranger, Texas, c/o Texas & Pacific Coal Co. Come at once your mother very low. Answer. T. W. Key."

The message was delivered to appellant by the sender, Key, about 2 o'clock p. m. March 19, 1918. Appellee's mother was quite old, and at the time was seriously ill and unconscious, and so remained until the morning of March 21, 1918, when, for a short period of time, she became conscious and rational, afterwards relapsing again into unconsciousness, and so remained until April 12, 1918, when she died.

Plaintiff in his petition alleged that on March 19, 1918, his mother was at Lamesa very ill and not expected to live, and plaintiff was at Ranger; that on said date the message aforesaid was delivered to defendant at Lamesa by T. W. Key, the sender and plaintiff's agent; that at the time the message was delivered to defendant Key notified defendant that it was desired the telegram be delivered in person to appellee, and the sending of same in care of the Texas & Pacific Coal Company was merely for the purpose of assisting defendant in locating appellee and delivering the telegram to him in person and Key then further informed defendant that he would then pay to it the necessary required fee, if any, for delivery by defendant in person to McCormick; that defendant then informed Key that it could not arrive at the exact amount necessary to make such delivery, but, if Key would guarantee the payment of as much as $40, it would undertake to insure the use of ordinary care in making the delivery in person of the telegram to appellee, and Key did then and there guaranty the payment of said sum of money, or so much thereof as was necessary for such delivery.

It was then alleged that no delivery of the message was made to him nor to the Texas & Pacific Coal Company, and that, if ordinary care had been used by defendant, he would have received the telegram in time to have reached his mother's bedside while she was conscious and rational; that he had suffered mental anguish and distress in being deprived of seeing and conversing with his mother while she was conscious and rational and able to know and recognize him, and thereby damaged in the sum of $1,950, for which he sought judgment.

The defendant answered by general denial and special plea, alleging delivery to the coal company on the afternoon of the date of the message and within a reasonable time. Other special pleas made by it need not be stated.

The case was tried before a jury and submitted upon special issues. The issues submitted and the jury's findings are given as follows:

"Mental anguish is that keen and poignant suffering which results from some great grief.

"Proximate cause means a cause without which the injury would not have occurred, and from which it could have been reasonable anticipated injury would result as a natural and probable consequence.

"Ordinary care is such care as a person of ordinary prudence and caution would exercise under the same or similar circumstances.

"Bearing in mind the foregoing definitions, this case is submitted to you upon the following special issues:

"Special issue No. 1: Did the agent of the defendant, Western Union Telegraph Company, at Lamesa, Tex., on the 19th day of March, 1918, agree with T. W. Key, in consideration of the guaranty of the payment by said Key of an amount not exceeding $40, that the defendant would deliver the telegram in question to the plaintiff, C. H. McCormick, in person? Answer: Yes.

"Special issue No. 2: Did the defendant, Western Union Telegraph Company, use and exercise ordinary care in making the delivery of said telegram to the plaintiff, C. H. McCormick? Answer: No.

"Special issue No. 3: Was the telegram in question ever delivered to the plaintiff, C. H. McCormick? Answer: No.

"Special issue No. 4: Was the telegram in question ever delivered to Mr. Hewitt, the timekeeper of the Texas & Pacific Coal Company? Answer: No.

"Special issue No. 5: Was the plaintiff, C. H. McCormick, on the 19th and 20th days of March, 1918, in the town of Ranger, Tex.? Answer: Yes.

"Special issue No. 6: Could the defendant, Western Union Telegraph Company, by the exercise of ordinary care, have delivered the said telegram to the plaintiff, C. H. McCormick, on the afternoon or early in the night of March 19, 1918? Answer: Yes.

"Special issue No. 7: Could the plaintiff, C. H. McCormick, have left Ranger, Tex., late in the night of March 19th, and have reached his mother's bedside before the morning of March 21, 1918? Answer: Yes.

"Special issue No. 8: Was the plaintiff's mother rational and able to recognize and converse with him after he reached his home in Lamesa? Answer: No "Special issue No. 9: Has the plaintiff suffered any damages by reason of mental anguish, as hereinbefore defined, in not being at his mother's bedside while she was rational, if she was rational, on Thursday morning, March 21, 1918? Answer: Yes.

"Special issue No. 10: Was the failure, if any, of the defendant, Western Union Telegraph Company, to deliver said telegram, if you have found that they failed to deliver said telegram, and could have done so by use of ordinary care, as hereinbefore defined, the proximate cause of plaintiff's mental anguish, if any? Answer: Yes.

"Special issue No. 11: Would plaintiff have left Ranger for his mother's bedside on the night of March 19th in time to have reached there and been with her while she was rational, if the telegram in question had been delivered to him in the evening or early night of March 19th? Answer: Yes."

Some special charges given by the court will be later indicated. Special issue No. 12 related to the issue of damages, and in response thereto the jury assessed the damages at $1,000.

Opinion.

Complaint is first made of the refusal of a peremptory instruction in favor of the defendant; the first contention in this connection being that under the evidence it appears appellee suffered no mental anguish, but was merely disappointed, angered, and resentful towards appellant because of the nondelivery of the message. Mere disappointment, anger, and resentment over the nondelivery of the message would form no basis of recovery, but we do not construe the appellee's testimony as showing emotions of this nature only. It is true he testified he did feel disappointed, angered, and resentful over the nondelivery of the message, but he further testified:

"If I had gotten to Lamesa on March 20th, I would have been present on the 21st, when my mother was rational, and the fact that I was not here at that time caused me grief."

This testimony shows that he was grieved, and the fact that he may also have been disappointed, angered, and resentful, would not preclude him from recovering damages for the mental anguish incident to the grief testified to by him. The court's charge defined mental anguish in a manner which is not excepted to by the appellant. Furthermore, at the request of the appellant a special charge was given whereby the jury was instructed that mere disappointment, anger, worry, mental distress, or injury of the feelings did not constitute mental anguish as that term was used in the general charge. The definition given in the general charge and this special instruction completely guarded against any conception arising in the mind of the jury that disappointment, anger, and resentment could be construed as mental anguish, and, as indicated above, the appellee testified to his grief, and the amount of damage arising from this grief was a proper matter for submission to the jury.

It is further insisted the peremptory instruction should have been given because the evidence discloses that the message was delivered to the Texas & Pacific Coal Company within a reasonable time after it reached Ranger, and, since the message was sent in care of said company, no recovery could be had. This is overruled because it was pleaded, proven, and found by the jury that there was a special contract made to deliver the telegram to the sendee in person. The pleading and the testimony shows that the message was sent in care of the Texas & Pacific Coal Company simply for the purpose of facilitating the delivery by appellant to the sendee in person, and under such circumstances delivery to the person in whose care the message is sent is not sufficient. Telegraph Co. v. Bryant, 35 Tex. Civ. App. 442, 80 S. W....