Western Union Telegraph Co. v. Kilgore

• Decision Date: 11 December 1919
• Docket Number: (No. 7776.)
• Citation: 220 S.W. 593
• Parties: WESTERN UNION TELEGRAPH CO. v. KILGORE et ux.
• Court: Texas Court of Appeals

Page 593

220 S.W. 593

WESTERN UNION TELEGRAPH CO. v. KILGORE et ux.

(No. 7776.)

Court of Civil Appeals of Texas. Galveston.

December 11, 1919.

On Motion for Rehearing, February 25, 1920.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Suit by J. M. Kilgore and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered for defendant.

Hume & Hume, of Houston, and Francis R. Stark, of New York City, for appellant.

Atkinson & Atkinson, of Houston, for appellees.

PLEASANTS, C. J.

This suit was brought by appellees, J. M. Kilgore and wife, Georgia A. Kilgore, against appellant to recover damages for the alleged negligent failure of appellant to deliver a telegram sent by Mrs. Kilgore to her brother, Joe Fry, requesting that the burial of her father's body be delayed until she could be present at his funeral.

Plaintiff resides at South Houston, Harris county, Tex., and James Fry, the father of Mrs. Kilgore, at the time of his death on October 14, 1917, resided near Mansfield, Ark. He died about 4 o'clock a. m. on the day stated, and a telegram announcing his death was sent to Mrs. Kilgore by some member of the family. In reply to this telegram Mrs. Kilgore, some time during the morning of October 14th, sent the following telegram:

                               "South Houston, Texas
                  "Joe Fry, Mansfield, Arkansas. Hold body
                until I reach there. Leaving to-day; reach
                there to-morrow.   [Signed] G. A. Kilgore."
                

The petition alleges that the agent of appellant at South Houston who received and transmitted the message was fully informed of the purpose of the message and the relationship of the parties, and was told that plaintiff's brother, Joe Fry, to whom the message was sent, lived some distance in the country from Mansfield, and that it would be necessary to send a messenger out with the telegram, and that plaintiffs guaranteed the necessary charges for the delivery of the telegram —

"and the said agent promised and undertook the delivery of the message to Joe Fry at Mansfield, Ark."

"It is further made known that, instead of delivering said telegram to the said Joe Fry, as promised, and instead of having said body held for burial until plaintiff, G. A. Kilgore, could arrive at Mansfield, Ark., the defendant and its servants and agents at Mansfield, Ark., carelessly and negligently failed and refused to deliver said telegram, and therefore her father's body was not held for burial until she could get there, but when plaintiff, G. A. Kilgore, arrived at Mansfield, Ark., on the 15th day of October, 1917, her father's body had been buried for several hours, and she was thereby deprived of the privilege of seeing his body and of attending his funeral, through the neglect of defendant, as aforesaid.

"She further shows that the disappointment which she endured by reason of the failure of being able to attend her father's funeral has caused her great mental anguish and suffering, whereby she has been damaged in the further sum of $1,500."

The defendant answered by general demurrer, special exceptions, general denial and special plea setting up the defense that the message was interstate commerce, and that liability for damages for failure to deliver said message must be determined by the laws of the United States and rules of decision of the United States courts, and under such laws and rule of decision damages for mental anguish caused by the breach of a contract to deliver a telegraphic message cannot be recovered.

The trial in the court below resulted in a verdict and judgment in favor of plaintiff for $1,500.

The evidence sustains the following conclusions of fact: As before stated, plaintiff's father died at his home, about five miles from Mansfield, Ark., early in the morning of October 14, 1917. A short time after the death of the father the following telegram was delivered to the agent of appellant at Mansfield and transmitted to South Houston, Tex., and there delivered to Mrs. Kilgore:

                    "Mansfield, Arkansas, October 14, 1917
                  "Mrs. G. A. Kilgore, South Houston, Texas
                Papa passed away at 4 a. m. Come or answer
                                      [Signed] Joe Fry."
                

Mrs. Kilgore received this telegram about 11 o'clock a. m., on said date, and in response thereto sent the telegram first above set out. Joe Fry did not sign the telegram, which was sent to Mrs. Kilgore, but it was prepared and sent by his brother, W. A. Fry, who was at his father's residence at the time of his death, who for some reason not disclosed by the evidence sent it in Joe Fry's name. Joe Fry did not live with his father, but lived at his own home five or six miles from his father's, and about nine miles from Mansfield. The message to Mrs. Kilgore was given to Robert Ricks by some member of the Fry family and delivered by Ricks to the appellant's agent at Mansfield. This agent testified that he did not know Ricks nor Joe Fry, and thought at the time that the message was delivered to him by Joe Fry. He further testified that at the time Ricks filed the message with him he requested him to hold the answer, and stated that he would call for it.

In regard to the sending of the message requesting that the funeral be delayed until Mrs. Kilgore arrived, plaintiff, J. M. Kilgore, testified:

"I sent the message on October 14, 1917. I had some conversation with the lady operator about the delivery of the message. I stated: `Now, Mrs. McKowan, I don't know, but they tell me it is five miles or about five miles in the country; I don't know what the delivery charges will be. If I knew I would pay it, but I don't know, but you have that delivered, and I will pay the charges; it don't matter what it is, because it will be within reason.' And she says: `All right, Mr. Kilgore; I will do my best to have it delivered.' She says: `Will find out whether it goes through or not, and then I will try to have it delivered; that is all I can do.' I said: `That is all right; be sure you do now.' And she said: `I will.'

"After the train left I told Mrs. McKowan, `You be sure and attend to that message,' and she stated, `I will wire there and see if it got through.'"

Mrs. J. M. Kilgore, plaintiff, testified:

"My father lived five miles from the city of Mansfield. They call it five miles, it is so rough. It did not seem to be that far. I told Mrs. McKowan about where they lived. I had told her on Friday before that I had sent a message there concerning his health, and told her now it is five miles from town.

"We got on the train at South Houston, Tex., about 12 o'clock noon on October 14, 1917. We reached Mansfield on the 15th. I do not remember exactly what time, the train might have been a little late, but it was due there at 7 something, and it might have been a little late. It was at night when we got there, on the night of October 15th, when we arrived at Mansfield, Ark.

"I arrived at my father's house some time between the time I got to Mansfield and midnight. I guess I must have got there about 10:30 or 11. I do not know. I hired an automobile to take me out there. My son, Lee Wilson, was with me.

"When I reached my father's house that night, he had already been buried. The distance from where he is buried to my father's house is about six miles; at least they call it six miles."

The message reached Mansfield a few minutes after 12 o'clock on the 14th day of October, 1917. The agent there testified that the reason he made no effort to deliver it was that Ricks, when he gave him the message to be sent to Mrs. Kilgore, told him that he would call for the answer, and asked him to hold it. The message was never delivered.

Joe Fry testified that if the telegram from Mrs. Kilgore had been received the funeral would have been delayed until her arrival.

Mrs. Kilgore suffered anguish and distress of mind because her father was buried before she arrived at his home, and she was deprived of the consolation of seeing his body and being present at his funeral.

Under its first assignment of error, which complains of the refusal of the trial court to instruct the jury to return a verdict in favor of the defendant, appellant contends that the charge should have been given because the petition alleged that the defendant promised and undertook to deliver the message to Joe Fry at Mansfield, and the uncontradicted evidence showed that Joe Fry did not live at Mansfield, and there is no evidence showing, or tending to show, that he was at Mansfield on either the 14th or 15th of October, 1917.

If the petition could be properly construed as only alleging a contract on the part of appellant to deliver the telegram at Mansfield, it being shown that the addressee did not live at that place, but resided in the country nine miles from that town, and there being no evidence that he was in Mansfield on the day the telegram should have been delivered, appellant could not be held liable for failure to deliver the message. W. U. Tel. Co. v. Swearingen, 95 Tex. 423, 67 S. W. 767; W. U. Tel. Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40; W. U. Tel. Co. v. Shockley, 57 Tex. Civ. App. 30, 122 S. W. 945.

But the petition in this case should not be construed as only alleging a contract and agreement by appellant to deliver the message at Mansfield. It alleges that the agent who received the message for transmission was told that the addressee lived some distance in the country from Mansfield, and that it would be necessary to send a messenger to deliver the telegram, and that plaintiff guaranteed the cost of the delivery in the country, "and the said agent promised and undertook the delivery of said telegram to said Joe Fry at Mansfield, Ark."

We think when this paragraph of the petition is considered as a whole it should be construed as alleging that appellant's agent, knowing plaintiff's purpose in the sending of the telegram and the necessity for its prompt delivery, agreed to accept plaintiff's guaranty of...