Western Union Telegraph Co. v. Christensen

• Decision Date: 30 January 1904
• Citation: 78 S.W. 744
• Parties: WESTERN UNION TELEGRAPH CO. v. CHRISTENSEN.
• Court: Texas Court of Appeals

78 S.W. 744

WESTERN UNION TELEGRAPH CO. v. CHRISTENSEN.

Court of Civil Appeals of Texas.

January 30, 1904.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by Gus Christensen against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

N. L. Lindsley (Geo. H. Fearons, of counsel), for appellant. H. P. Lawther, for appellee.

BOOKHOUT, J.

Gus Christensen sued the Western Union Telegraph Company to recover damages for its failure to transmit and deliver the following telegraphic message: "Shreveport, December 1st, 1901. To Mrs. G. Christensen, No. 235 Elm Street, Dallas, Texas. Train late, will arrive in Dallas Monday afternoon. Best love. [Signed] G. Christensen." A trial resulted in a judgment for plaintiff, and defendant appealed.

1. Appellant complains of the action of the trial court in sustaining exceptions to its plea setting out the law of Louisiana—in effect that the contract was a Louisiana contract, and governed by the laws of that state. The plea alleged, in substance, that the contract was made in Louisiana, and was therefore to be governed by the laws of that state; that the negligence of defendant, if any, consisted wholly and entirely by reason of defendant's acts in the state of Louisiana, in transmitting the message; that the greater part of plaintiff's claim was for mental suffering sustained by reason of appellant's failure to transmit and deliver the message within a reasonable time; and that, by the laws of Louisiana, as settled and construed by the Supreme Court of that state, mental suffering, when unaccompanied by physical pain, does not constitute a cause of action, and no recovery can be had therefor. The plea was verified by affidavit of counsel for appellant. The plaintiff interposed a general demurrer to this plea, which was sustained, and the plea stricken out. In this ruling we think there was error. This plea must be taken as true when tested by a general demurrer. It shows that the contract was made in the state of Louisiana, and that the breach, if any, occurred in that state. Generally, when no place of performance is expressly stated, or implied from the terms of the contract, the law of the place where made will govern. Beach on Mod. Law, § 592; Story on Conf. Laws, § 242. The plea not only alleges the making of the contract in the state of Louisiana, but goes further, and shows, at least inferentially, that it was to be governed by the laws of that state. It also alleges that the breach occurred in that state. As stated, the effect of the demurrer was to admit the facts set up in the plea as true, and challenged their sufficiency to constitute a good defense. The demurrer should have been overruled. Tel. Co. v. Preston (Tex. Civ. App.) 54 S. W. 650; Jones v. Oil Co. (Tex. Civ. App.) 72 S. W. 248; Life Ass'n v. Harris, 94 Tex. 35, 57 S. W. 635, 86 Am. St. Rep. 813; Telegraph Co. v. Cooper (Tex. Civ. App.) 69 S. W. 427. This case is distinguishable from the case of Telegraph Co. v. Blake (Tex. Civ. App.) 68 S. W. 526. There the case was tried on its merits, and it was fairly deducible from the facts that the contract was performable in Texas.

It is contended by appellee that the right of action against a telegraph company for its failure in the performance of its duty to transmit and deliver a message promptly does not rest upon contract merely, but rests upon a failure on its part to perform a public duty, and consequently it may be sued not merely for the breach of a contract, but for the commission of a tort, and that, the failure to deliver the telegram occurring in Texas, the plaintiff residing in Texas, and the defendant being a foreign corporation doing business under permit in Texas, the rights of the parties are to be determined by the laws of Texas. The courts of this state treat suits of this character as an action to recover damages for a breach of contract. Tel. Co. v. Coffin, 88 Tex. 96, 30 S. W. 896; Thomas v. Tel. Co. (Tex. Civ. App.) 61 S. W. 501. In view of the pleadings, we think the contention untenable.

2. It is insisted that the court erred in overruling defendant's special exceptions that the damages claimed to have been sustained were such as could not have been contemplated by the parties at the time the contract was made. There is no merit in this contention. The petition alleges that plaintiff left Lufkin, Tex., with the remains of his wife's father, to take the same to Dallas, Tex., for burial. His route was over the Houston East & West Texas Railroad to Shreveport, and from there over the Texas & Pacific Railroad to Dallas. Before leaving Lufkin he telegraphed his wife, at Dallas, that he would arrive in Dallas Monday morning, December 2d, on the west-bound train, with the body of her father. When he reached Shreveport he found the train over the Texas & Pacific going west was from six to eight hours late, which would prevent him from reaching Dallas until late in the afternoon of December 2d. He thereupon fully informed the defendant's operator at Shreveport of all that had happened, the character of the sickness of the deceased, the relationship of the parties, and the object and purpose of his trip, and thereafter sent his wife the message above set out....