Western Union Telegraph Co. v. Hinson
| Decision Date | 20 June 1949 |
| Docket Number | No. 5967.,5967. |
| Citation | 222 S.W.2d 636 |
| Parties | WESTERN UNION TELEGRAPH CO. v. HINSON. |
| Court | Texas Court of Appeals |
William H. Flippen, Dallas, and Randal & Gibson, Lubbock, for appellant.
Ratliff & Conner, Spur, for appellee.
Appellee, Charles W. Hinson, filed suit against appellant, The Western Union Telegraph Company, seeking to recover damages alleged to have accrued to him by reason of the failure of appellant to deliver an urgent telegram announcing the arrival of the body of appellee's deceased son, who had been killed by enemy gunfire in World War II. Sgt. Wright D. Hinson, age thirty, was killed on March 31, 1943, in the north African area operations of the said war. At the request of his father, appellee herein, his body was shipped back to the United States. Appellee had not been notified by the War Department when the body would reach the United States but he had read in the newspapers when it would reach New York. He was advised about May 1, 1948, by the War Department that the body was enroute home and would be sent to Fort Worth, Texas, from which station it would be rerouted to its burial place. He had also been advised that he would be notified at least three or four days in advance of its arrival when to expect the body to reach Spur, Texas. As a part of the routine involved in such matters, appellee designated the Campbell Funeral Chapel of Spur, Texas, as the funeral director to receive notice of the shipment of the said body and to receive the body at the depot upon its arrival in Spur, Texas. Appellee likewise contracted with Spencer Campbell, operator of the said funeral chapel, to receive such notice and to relay the same to appellee and to furnish to appellee all of the usual services in connection with the receiving of a body of a deceased member of the armed forces at the depot and the subsequent funeral services and burial thereof.
On May 28, 1948, at about 9:30 o'clock a. m. the proper military authorities, in consideration of the toll charged therefor, filed with appellant's Fort Worth, Texas, office the following message for delivery by appellant to the Campbell Funeral Chapel at Spur, Texas:
The said message was never delivered by appellant to Spencer Campbell or to the Campbell Funeral Chapel at Spur although a stipulation made by the parties and found in the statement of facts reveals that appellant's office at Spur, Texas, received the said message.
As a result of the failure to deliver the message by appellant, the body was not met at the depot upon its arrival at 1:45 o'clock p. m., June 3, 1948, by appellee or any member of his family or by Spencer Campbell or any other person from the said funeral home and it was necessary to omit the usual services had in connection with receiving such a body at the depot and escorting it to the funeral home. On the contrary, as a result of the failure of appellant's agent to deliver the said message, appellee and his family were attending a funeral at Post, Texas, some fifty miles from Spur when the body arrived; Doyle Hinson, a son of appellee and a brother of the deceased was riding a horse in a rodeo parade on the streets of Spur, Texas, at the time the body arrived and the director and his employees of the said funeral home were busy with their usual activities at the time the body arrived. Soon after the arrival of the body the depot agent at Spur gave notice to Spencer Campbell who took the body immediately to the funeral home and who, together with other friends and acquaintances, notified appellee and the immediate members of his family about the arrival of the body.
In his petition for damages appellee alleged the foregoing statements as facts and further alleged that because of the lack of advance notice of the arrival of his son's body, he was so disturbed and confused that he was wholly unable to collect his thoughts sufficiently enough to make the desired arrangements and preparations for the funeral service and was particularly deprived of the privilege of having some of his son's "war buddies" present for the funeral services as a result of which he was likewise deprived of having the proper honor paid his son that circumstances warranted. For all of which reasons he alleged that appellant was negligent which negligence caused him to suffer great mental anguish to his damages in the sum of $2,500.
The case was tried to a jury which found that appellant's failure to deliver the said message was negligence, which negligence was the proximate cause of appellee's suffering mental anguish for which he should be awarded damages in the sum of $2,500. The trial court rendered judgment accordingly from which an appeal has been perfected to this court.
Appellant pleaded as a defense that the failure of appellee to delay the funeral constituted contributory negligence which was the proximate cause of the injury about which he complains. In its first point of error appellant complains that the trial court erred because of its refusal to submit to the jury appellant's special requested issues inquiring if appellee's failure to delay the funeral was not such negligence as proximately caused the injuries about which appellee complained or a contributing proximate cause of such injuries. It appears that the essential elements of appellee's alleged cause of action were: (1) that a contract was made with appellant, for the benefit of appellee, to transmit and deliver the message in question; (2) that appellant was negligent in its failure to deliver the message at any time; (3) that such negligence of appellant was the proximate cause of appellee's mental anguish that resulted in his injuries; (4) that by reason of such injuries appellant was entitled to damages. By stipulation appellant, in effect, confesses its negligence, but it seeks to escape liability and to excuse its negligence by charging that appellee was guilty of contributory negligence in his failure to delay the funeral after he received notice of the arrival of his son's body. But appellee contends that a part of his material damages began to accrue before he had notice of the arrival of the body and before he knew the message had been given to appellant but not delivered and he did not have an opportunity to avoid the injury by the exercise of ordinary care. He further contends that the breach of contract by appellant that resulted in the sudden announcement of the arrival of the body of his deceased son disturbed and confused him to such an extent that he was unable to collect his thoughts so as to make proper arrangements for the funeral in accordance with the plans he had formerly made as a result of the notice he had previously received from the War Department advising him that he would be notified at least three or four days in advance when to expect the body. The message itself directed the Campbell Funeral Chapel to notify the "next of kin" immediately. The record reveals that appellee had contracted with the operator of the funeral chapel to receive and relay the notice to him when the body would arrive and to furnish for appellee all of its usual services in connection with the receiving of such a body under such circumstances. The funeral director testified, in effect, that such usual services consisted of notification in advance of the local American Legion and Veterans of Foreign Wars organizations, which furnished an honor guard at the station on arrival of the body and also furnished an escort and pall bearers, all of whom marched ahead of the coach that carries the remains from the railroad station to the funeral chapel at a time when the business houses of the town are closed out of respect for the honored deceased soldier. But, on the contrary, because of appellant's breach of the contract in its failure to deliver the message in question the business houses were not notified in this instance and were not closed when the body arrived, a rodeo parade was in progress within one block of the depot, no member of the family of the deceased was present and no funeral director with honor guard, escort and pall bearers met the train at the station to accompany the body to the funeral chapel.
Appellee had previously arranged with two of his deceased son's "war buddies" who lived in separate sections some sixty or seventy miles away, to attend the funeral. But, because of his confused and disturbed condition of mind as a result of receiving the body without any advanced notice, he forgot to notify the said "war buddies" about the funeral or to have them notified of such. The said "war buddies" were Leslie (Hoyt) Hill of near Post, Texas, and Coyt W. Hudson of Lubbock, Texas, both of whom testified at the trial that they would have attended the funeral if they had known about it. They had both enlisted in the Service with deceased early in 1941 and had been closely associated with him until he was killed. Hudson was with deceased after he was wounded and before he died and he had ministered as best he could to the needs and comforts of the deceased before his death.
The record reveals that appellee was sixty-two years of age and that because of his confused mental condition his son, Doyle Hinson, and...
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