Western Union Telegraph Co. v. Smith

• Decision Date: 27 June 1916
• Docket Number: (No. 1009.)
• Citation: 188 S.W. 702
• Parties: WESTERN UNION TELEGRAPH CO. v. SMITH et al.
• Court: Texas Court of Appeals

188 S.W. 702

WESTERN UNION TELEGRAPH CO. v. SMITH et al.

(No. 1009.)

Court of Civil Appeals of Texas. Amarillo.

June 27, 1916.

On Motion for Rehearing, October 18, 1916.

Appeal from District Court, Swisher County; R. C. Joiner, Judge.

Action by Ada Smith and E. D. Smith against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Motion for rehearing. Former judgment set aside, and opinion withdrawn, and judgment for plaintiffs reversed and rendered for defendant.

Jno. W. Veale and W. A. Davidson, both of Amarillo, and Albert T. Benedict, of New York City, for appellant. W. F. Hendrix, of Tulia, for appellees.

HUFF, C. J.

The appellee Mrs. Ada Smith, joined by her husband, E. D. Smith, instituted suit against the appellant for failure to deliver a telegram sent from Artesia, N. M., to Judge C. F. Kerr, at Dimmitt, as follows:

                "Ada coming. Have conveyance meet her at
                Hereford.     `Phone Hereford [Signed] E. D
                Smith."
                

Mrs. Smith's brother was killed at Dimmitt and the allegations show that on the evening previous to the sending of the telegram that Kerr had talked with E. D. Smith over the phone, requesting Mrs. Smith to be at the funeral the next day, at 5 o'clock. Mrs. Smith at that time was not very well, but Smith notified Kerr that she was able to go, and that he would wire him the next morning, which he did, notifying the agent receiving the telegram of the necessity in prompt delivery of the message; that the message was not delivered, and no one was at Hereford to meet Mrs. Smith, as requested, and as a consequence she was unable to be at the funeral, being unable to get a conveyance out of Hereford for Dimmitt in time to be present; that if the message had been promptly delivered, as appellant undertook to do, that she could and would have been present at the funeral.

Among other defenses interposed by appellant was a plea, alleging that under the laws of the state of New Mexico, where the contract was made, damages were not recoverable on account of mental anguish in cases of this kind, where there was no physical injury.

We believe the evidence offered being uncontroverted in its nature as to the law of New Mexico, as to the truth of the plea by appellant, by a disinterested lawyer of New Mexico, of some 28 years' experience, and the quotation by him of section 4, art. 22, of the Constitution of that state, to the effect that all laws in force in the territory of New Mexico before admission into the Union, remained in full force and effect as the laws of the state, and "from the decisions of Leitsendorfer v. Webb, 1 N. M. 34-53, also Sandoval v. Albright, 14 N. M. 345, 93 Pac. 717, holding to the effect that the common law was extended over the territory so far as relates to the regulation and control of proceedings of the Supreme and District Courts in determination of causes, and the law was declared by the final tribunal of the territory previous to the Constitution and admission of the territory into the Union, by the Circuit Court of Appeals of the Eighth District for the United States, in the case of Western Union Telegraph Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386, to the effect that damages were not recoverable for mental anguish unaccompanied by personal injury.

The appellant requested a special charge, instructing a verdict for it, which was refused and assigned as error; and also a charge to the effect that if the jury should find from the evidence that there was no law in New Mexico, authorizing recovery for mental suffering as damages, to return a verdict for the appellant. These charges were refused by the trial court, and exception reserved thereto and assigned here as error.

We regard the testimony as uncontroverted and as establishing that the law in New Mexico at the time of the sending of the message was as alleged; and that being the place of the contract, under the authorities of this state, the court should have instructed the jury as requested. Telegraph Co. v. Waller, 96 Tex. 589, 74 S. W. 751, 97 Am. St. Rep. 936; Telegraph Co. v. Buchanan, 35 Tex. Civ. App. 437, 80 S. W. 561; Telegraph Co. v. Cooper, 29 Tex. Civ. App. 591, 69 S. W. 427; Ligon v. Telegraph Co., 46 Tex. Civ. App. 408, 102 S. W. 429; Telegraph Co. v. Garrett, 46 Tex. Civ. App. 430, 102 S. W. 456.

In the original opinion, it was our view that the action was for negligence in failing to deliver the telegram in Texas and that the cause of action was really ex delicto; and we understood that our Supreme Court, in Stuart v. Telegraph Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623, so decided. Being a tort, committed in the state of Texas, where such damages could be recovered, the law of the place of the wrong or tort should control; but the authorities above cited appear to hold to the contrary, and the rule in this state, as we gather from the decisions, is that the place of the contract will control the maximum amount of damages which may be recovered. We, perhaps, had in mind the rule of the United States Supreme Court, that in order to maintain an action of tort, founded upon an injury to the person, or to property and not upon a breach of contract, the act which is the cause of the injury, and the foundation of the action, will be governed by the law of the place in which it was done. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. However, whatever the rule may be in other jurisdictions, it appears to be established in this state, as above pointed out.

The case also presents the issue whether interstate messages, under the amendment of the Interstate Commerce Act, June 18, 1910, by which telegraph companies are subject to the provisions of that act, the Congress has taken full charge of the subject? This message, under the act, was interstate. The question, therefore, is, whether Congress has clearly manifested a purpose to supersede or suspend the exercise of the police powers of the states with reference to this particular subject. The Courts of Civil Appeals for the Sixth and Eighth Districts apparently have...