Western Union Telegraph Co. v. Kibble

• Decision Date: 12 January 1909
• Citation: 115 S.W. 643
• Parties: WESTERN UNION TELEGRAPH CO. v. KIBBLE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 643

115 S.W. 643

WESTERN UNION TELEGRAPH CO. v. KIBBLE.^†

Court of Civil Appeals of Texas.

January 12, 1909.

Rehearing Denied January 28, 1909.

Appeal from District Court, Grimes County; Gordon Boone, Judge.

Action by Ida Kibble against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered in part, and reformed and affirmed in part.

Geo. H. Fearons, Lewis & Austin, and Dean, Humphrey & Powell, for appellant. Haynes Shannon, for appellee.

REESE, J.

This is a suit by Ida Kibble against the Western Union Telegraph Company to recover $2,000 as damages for negligent failure to transmit and deliver a telegraphic message addressed to her. It is alleged, in substance: That plaintiff's husband, Frank Kibble, was dangerously ill at the home of his mother, Bettie Kibble, in Huntsville, Tex., and that on January 25, 1907, the said Bettie Kibble delivered to defendant's agent at Huntsville for transmission and delivery to plaintiff at Navasota, Tex., the following message: "Huntsville, Texas, January 25, 1907. Ida Sims, Colored, Navasota, Texas. Come at once. Bettie Kibble." That the purpose of this message was to require plaintiff to come at once to Huntsville to be with her said husband, and that, if the message had been promptly delivered, she could and would have gone at once to Huntsville, and would have been with her husband before, and at the time of, his death, which occurred on January 28th, but that by reason of the failure on the part of defendant company to promptly deliver the message, and as a proximate consequence thereof, she was deprived of the opportunity of being with her husband during his last moments and at the time of his death, by reason whereof she suffered great mental anguish. It was alleged that while plaintiff's proper name was Ida Kibble, she was well known in Navasota by the name of Ida Sims, which was her name before marriage. The message was not delivered until after plaintiff's return to Navasota from Huntsville where she had gone upon receipt of another message, but too late to see her husband alive. Upon trial with a jury there was a verdict in favor of plaintiff for $750, and from which judgment, its motion for a new trial having been overruled, defendant prosecutes this appeal.

The negligence of appellant in failing to deliver the message was abundantly shown, and is admitted in its brief. It was also shown by the undisputed evidence that, if reasonable diligence had been used in the delivery of the message, appellee could and would have gone to Huntsville in time to be with her husband at least two days before, and at the time of, his death. Appellant defends here solely upon the ground of want of such notice to it of the purpose of the message as to charge it with the damages claimed and awarded, and the point is presented by appropriate assignments of error complaining of the refusal of charges requested, the charge of the court, and the action of the court in overruling its motion for a new trial.

The defendant requested the court to charge the jury as follows: "In this case the telegram sued on and offered in evidence does not in terms disclose its importance, and is wholly insufficient to put the defendant upon notice of the purpose for which the same was sent, or that the failure on its part to promptly deliver the same would result in plaintiff's being unable to be present with her husband in his last moments and at his death, and the plaintiff herein has failed to show by the evidence that any other notice of the importance of said message, or the purpose of the sending of the same, or the consequences that would result by reason of the failure of the defendant promptly to transmit and deliver the same, than was disclosed by the message itself. You are therefore instructed to return a verdict in favor of the defendant." And also requested peremptory charge to find for defendant, both of which were refused. The court charged the jury: "If you believe from a preponderance of the evidence that the defendant company, its servants and employés, by the use of the words contained in said telegram, and the request made for its immediate transmission, were put upon such notice as to the purpose of such message as would have caused a person of ordinary prudence to make further inquiry as to the purpose of said message; and if you further believe by a preponderance of the evidence that, after the message reached Navasota, the said defendant company, its servants and employés, were guilty of negligence in not making delivery of such message to plaintiff; and you further believe that but for such negligence, if any, they would have made delivery of said message to plaintiff, and that plaintiff could and would have gone to Huntsville, and have been at the bedside of her husband before his death, and been with him at said time—you will find for plaintiff. On the other hand, if you do not believe from a preponderance of the evidence that the words in the message and the request of the sender of the message were sufficient to put a person of ordinary prudence upon inquiry as to the purpose of said message, you will find for the defendant." The refusal of the requested instructions and the giving of the charges copied above are made the basis of assignments of error from 1 to 5.

Outside of the terms of the message, it was shown that, when it was presented to the agent, he was requested to send it at once. No information of the subject of the message was given to the agent further than such as was to be gained from the message itself. The request to send it at once added nothing to what was contained in the face of the message, so we have nothing except the language of the message, by which appellant was advised that the addressee was requested to "come at once" to Huntsville. This was insufficient to inform appellant that mental distress of any character whatever would probably or possibly result to appellee from failure to promptly transmit and deliver the message. With regard to the rule in such cases, it is said in Ikard v. W. U. Tel. Co. (Tex. Civ. App.) 22 S. W. 534: "It is too well settled to require citation of authorities that the special damages recoverable in actions of this character are limited to such as may reasonably be presumed to have been in contemplation of the parties at the time the contract was made." As said by Justice Williams of this court in W. U. Tel. Co. v. Kerr, 4 Tex. Civ....