Western Union Telegraph Co. v. Swearingin

• Decision Date: 08 February 1904
• Citation: 78 S.W. 491
• Parties: WESTERN UNION TELEGRAPH CO. v. SWEARINGIN.
• Court: Texas Supreme Court

78 S.W. 491

WESTERN UNION TELEGRAPH CO. v. SWEARINGIN.

Supreme Court of Texas.

February 8, 1904.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by G. S. Swearingin against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals (65 S. W. 1080), which affirmed the judgment, and certifies a question to the Supreme Court. Answered.

Geo. H. Fearons and Stanley, Spoonts & Thompson, for appellant. G. H. Goodson, for appellee.

GAINES, C. J.

This is a certified question from the Court of Civil Appeals for the Second District. The certificate is as follows: "In the above cause now pending before this court upon a motion to certify upon the following facts we held that appellee's damages were not too remote, but were in contemplation of the parties at the time of the sending of the message hereinafter referred to, and were properly recoverable in this suit. Appellee's son was killed at Ft. Worth, Texas, August 1, 1899. At about 1 o'clock p. m. of that day one J. M. Stuart, acting for the wife of the deceased, delivered to appellant at its Ft. Worth office the following message: `Ft. Worth, Texas, Aug. 1st, 1899. To Green Swearingin, Comanche, Texas: Come, Frank is dead. Mrs. Swearingin.' Stuart paid the charges, and the company undertook the delivery of the message, but, upon ascertaining that Green Swearingin did not live within the established free delivery limits of the town of Comanche, a service message was returned to the Ft. Worth office to that effect, and Stuart was notified that the company would not undertake the delivery of the message to Swearingin at his home in the country without payment or guaranty of payment of the sum of two dollars extra charges. Stuart guarantied this sum, but the message was not delivered until after the burial. If the message had been properly transmitted and delivered, appellee would have received it in time to have left Comanche at 9 o'clock a. m. on August 2d, and would have notified Stuart of his departure, and would have reached Fort Worth at 1:30 o'clock p. m. of the same day, and in time to have attended the burial of his son. By reason of the failure to hear from Swearingin, however, Stuart concluded that he was not coming, and buried the remains at 11 o'clock a. m. on August 2d. If Stuart had received notice that Swearingin was on his way to Ft. Worth, he would have held the body until his arrival. Upon the authority of Western U. Tel. Co. v. Norris, 60 S. W. 982, 1 Tex. Ct. Rep. 685, in which a writ of error was refused by your honors, we held as above indicated. Appellant insists that this holding is in conflict with the holding of the honorable Court of Civil Appeals for the Third Supreme Judicial District in the case of Western U. Tel. Co. v. Stone, reported in 27 S. W. 144, and we therefore deem it our duty to grant the motion, and to certify to your honors whether or not we were in error in our said holding."

We are of opinion that the Court of Civil Appeals correctly held that the damages in this case were not too remote. The point is ruled by the decision in the case of Western Union Telegraph Company v. Norris, 60 S....