Western Union Telegraph Co. v. Shaw

• Decision Date: 12 January 1944
• Docket Number: No. 8169.,8169.
• Citation: 177 S.W.2d 52
• Parties: WESTERN UNION TELEGRAPH CO. v. SHAW.
• Court: Texas Supreme Court

Page 52

177 S.W.2d 52

WESTERN UNION TELEGRAPH CO. v. SHAW.

No. 8169.

Supreme Court of Texas.

January 12, 1944.

Rehearing Denied February 9, 1944.

Error from the Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by R. L. Shaw for himself and his wife, Bessie Shaw, against the Western

Union Telegraph Company to recover for mental anguish suffered by plaintiff and his wife as result of failure of defendant to transmit a telegram notifying them of the death of a grandchild. From a judgment for plaintiff, the defendant appealed, and the Court of Civil Appeals, 173 S.W.2d 335, affirmed in part and reversed in part a judgment, and on motions for rehearing, granted the motions in part and overruled them in part, 173 S.W.2d 766. To review the judgment of the Court of Civil Appeals, the defendant brings error.

Judgments of Court of Civil Appeals and of the trial court reversed, and judgment rendered for defendant.

Conner & Conner and Earl Conner, Sr., all of Eastland, and Francis R. Stark, of New York City, for petitioner.

Turner & Seaberry, of Eastland, for respondent.

FOLLEY, Commissioner.

This suit was filed by the respondent, R. L. Shaw, seeking damages from the petitioner, Western Union Telegraph Company, for alleged mental anguish suffered by him and his wife, Bessie Shaw, because of their being prevented from attending the funeral of their grandchild due to the failure of the petitioner to promptly deliver a message announcing its death. In a trial before the court without a jury the respondent recovered $500 for himself and $500 for the use and benefit of his wife. The Court of Civil Appeals at Eastland, in its original opinion, affirmed the recovery in behalf of the respondent for his own damages, but reversed and rendered the judgment allowing him recovery for his wife. 173 S.W.2d 335. Upon motion for rehearing the Court of Civil Appeals modified its original holding by merely reversing and remanding the recovery in behalf of Mrs. Shaw, leaving undisturbed the recovery in favor of the respondent for his own damages. 173 S.W.2d 766. This court granted a writ of error upon the application of the Western Union Telegraph Company.

Jack Shaw, son of the respondent and Bessie Shaw, resides at Beaumont, Texas, at which place the telegraphic message in question was delivered by him to the agent of the petitioner for transmission to his father who then resided at Cisco, Texas. The Beaumont office of the petitioner opens at 7 a. m. and closes at 12 midnight. Such opening and closing hours were shown to have been both reasonable and customary for cities like Beaumont. The Hotel Beaumont functions as a commission agent for the petitioner and during the business hours of petitioner accepts written messages from the public and sends them by messenger to the Western Union office at Beaumont for transmission, such office being located immediately across the street from the hotel. During the time the Western Union office is closed at night the hotel accepts messages for transmission after the Western Union office opens. At 1:10 a.m. on the morning of January 14, 1942, the thirteen-hour-old son of Jack Shaw died in a Beaumont hospital. About 2 a.m. of that same morning Jack Shaw filed the following telegram with the Hotel Beaumont addressed to his father, R. L. Shaw, at Cisco, Texas: "Baby died 1:10 A.M. Florence coming tomorrow. Will call you 10:00 P.M. at Paul's." The message, which was checked as a night letter, was delivered by the hotel to the Western Union office at 7:18 a.m. on January 14, 1942, and was transmitted from the Beaumont office of the petitioner to its Dallas office at 7:33 a.m. of the same day. The telegram was never delivered to the respondent and no trace was found of it beyond the Dallas office. The baby was buried at Beaumont sometime during the afternoon of January 14, the same day it died. The exact hour of the funeral was not shown. The baby was a premature infant weighing only 4½ pounds and lived only thirteen hours after its birth. The death certificate shows that the infant died of prematurity. The "Florence" referred to in the telegram is the stepmother of Jack Shaw's wife, and resides in Oklahoma. The "Paul" therein referred to resides at Cisco and is a brother-in-law of R. L. Shaw. The respondent was without a telephone in his home in Cisco. The brother-in-law had one. It was at the home of the brother-in-law that Jack Shaw was supposed to have called his father at 10 p.m. the night of January 14, 1942. Such call, however, was not made. The grandparents did not learn of the death and burial of the baby until about noon of January 15 when they talked to their son over the telephone. In such conversation they also learned that on the previous day Jack Shaw had delivered for transmission the message announcing the death of the infant.

The respondent made a general allegation that if the telegram had been delivered on the morning of January 14, 1942, he and his wife could and would have gone to Beaumont and would have reached there in time for the funeral. The testimony on this point is about as general as the allegation. The distance from Cisco to Beaumont was shown to be 398 miles. The respondent owned an automobile and presumably would have used it in going to Beaumont. He offered his own testimony that if the telegram had been delivered promptly he would have called his son by telephone and requested a postponement of the funeral. An objection to such testimony was sustained by the trial court and the respondent cross-assigned this action as error. No other proof was offered or made on this question. Jack Shaw did not testify at the trial. The evidence fails to show whether the time for the funeral had been set at the hour the death message was filed for transmission, nor does it show anything relative to the funeral plans. There was no proof to the effect that if the telegram had been delivered promptly on the morning of January 14 the respondent would or could have reached Beaumont in time for the funeral during the afternoon of the same day, and no such contention is made by the respondent. He seeks to justify the recovery upon the theory that if the telegram had been delivered promptly he would have contacted his son by telephone and would have asked for and obtained a postponement of the funeral until he could have reached Beaumont. Although there was no showing that the funeral would have been postponed upon such request, we shall assume, for the purposes of this opinion, that if the telegram had been delivered promptly such request would have been made and that the postponement would have been effected.

The first question to be decided is whether the relation of grandparent and grandchild was such that, if the telegram had been the ordinary death message, the petitioner, from its language, would have been charged with knowledge that a grandparent would have suffered mental anguish by being deprived of viewing the remains, and attending the funeral, of the deceased grandchild. This question has been settled adversely to the contention of the petitioner in the case of Western Union Tel. Co. v. Porterfield, Tex.Civ.App., 84 S.W. 850, 851, in which a writ of error was denied by this court. In disposing of the matter in the Porterfield case, the court said: "We have not been able to find any express decision holding in effect that a grandparent would be entitled to maintain an action for mental anguish suffered in a case of this character; but we have reached the conclusion that the relationship is not so remote but what the law might infer mental anguish to the grandparent that might be suffered, to some extent, equal to that of the parent who would be deprived of the privilege and consolation of viewing the remains of a deceased child. The ties of blood existing between such relations are almost as close, if not equally so, as that of brother and sister or brother and brother, which relationship falls within the line of adjudicated cases where recoveries are permitted. As a matter of fact, and it is one of common knowledge, the affection of grandparents for their grandchildren, especially when the latter are of tender age, usually equals that of the parents of the child."

In further support of this theory are the cases of Western Union Tel. Co. v. McMillan,...