Western Union Telegraph Company v. W. S. Carter, 85 Tex. 580

BROWN, Associate Justice. This case was tried before the judge without a jury, and findings of fact filed, which were adopted by the Court of Civil Appeals, and, so far as applicable to the questions involved here, are: That the telegraph company had offices and operators at Taylor and Smithville, about fifty miles apart. W. S. Carter lived at Taylor; his wife M. E. Carter was the daughter of N. B. Gorsuch, who died near Smithville on the 4th day of September, 1889. About 6 o’clock of that day F. S. Faust delivered to the operator at Smithville the following message: ''To W. S. Carter, Taylor: “ N. B.

Gorsuch is dead. Answer. “ Smithville, 9—4, 1889. “ F. S. Faust.” This message was not delivered to Carter until 11:55 a. m. of the next day. If it had been delivered with reasonable promptness W. S. Carter and M. E. Carter could have reached the place where the remains were before the burial. They set out as soon as possible after receiving the message, but reached the place after the body had been buried. The body was buried in the clothes that deceased wore at the time of his death, in an unenclosed lot. W. S. Carter had the body disinterred and removed to another place, at an extra cost of $20.

The operator at Smithville who received the message did not know the relationship between Carter and' deceased, nor that Carter had a wife. About an hour after the message was transmitted he was informed that Carter was the son-in-law of deceased. The operator at Taylor did not know the facts until after the message was delivered. The District Court gave judgment for the plaintiff Carter for 25 cents paid for the transmitting of the message, and costs of court, and for the sum of $20 expenses incurred by him in exhuming and removing the body. Also for $1000 for the mental suffering caused to M.E.

Carter by reason of the failure to reach the place before the body was buried, and on account of the place and manner of the burial of her father. The Court of Civil Appeals affirmed the judgment of the District Court, and a writ of error was granted to the Court of Civil Appeals by this court. The plaintiff in error presents this assignment of error for our consideration: “ The court erred in its conclusions of law, that defendant is chargeable with notice, or is affected with notice, by the terms of the message, of the relationship of either W. S. Carter (who is named) or M. E.

Carter (who is not named in the message) to N. B. Gorsuch, or of any other purpose or object of said message than to advise W. S. Carter of Gorsuch’s death and to obtain an answer.” As to M. E. Carter, the objection is well taken. She is neither mentioned in the message, nor was there any actual notice of her relationship to deceased. Tel. Co. v. Kirkpatrick, 76 Texas, 217; Elliott v. Tel. Co., 75 Texas, 18. The facts of this case are as nearly identical with Telegraph Company v. Kirkpatrick as it is possible to make two cases with different, names and dates.

Plaintiffs had no right to recover against the defendant the Telegraph Company for the damages alleged to have occurred to-Mrs. Carter, and the judgment of the court was therefore erroneous and must be reversed. As to W. S. Carter, the objections presented in this assignment are not well taken. The only case decided by this court that will support the-proposition made is that of Telegraph Company v. Brown, 71 Texas, 723, which has been practically overruled by all succeeding cases involving the same points.

That no doubt may hereafter exist, we here expressly overrule that case in so far as it asserts the proposition that it is necessary that a message must disclose the relationship of the persons named in it. Since the case of Telegraph Company v. Brown, the cases decided in this court have held contrary to the contention of the plaintiff in error. In the cases of Telegraph Company v. Adams, 75 Texas, 531; Telegraph Company v. Feegles, 75 Texas, 537; Telegraph Company v. Moore, 76 Texas, 66; Potts v. Telegraph Company, 82 Texas, 545; and Telegraph Company v.

Jones, 81 Texas, 271, the messages conveyed information of serious illness of a person named. In the following cases the information conveyed by the messages related to the death of the party named: Telegraph Company v. Broesche, 72 Texas, 654; Telegraph Company v. Rosentreter, 80 Texas, 406; and Telegraph Company v. Nations, 82 Texas, 539.

In the foregoing cases the same questions arose as are here presented, and this court held, in each that the telegraph company was chargeable with notice of the relationship that existed between the parties named in the message and of the purposes for which the communication was sent. In the case of Telegraph Company v. Broesche, the name of the plaintiff did not appear connected with the message, but the operator who received it knew that it was sent for him, and the company was held bound upon such actual notice, the same as if plaintiff had signed it. ' In the case of Telegraph Company v.

Adams, Justice Henry, delivering the opinion of the court, said, in reference to objections similar to these: “The rule insisted upon by the appellant is too restricted to be applied to communications sent by the electric telegraph.” And again in the same opinion he says: “ When such communications relate to sickness and death, there accompanies them a common-sense suggestion that they are of importance, and that the persons addressed have in them a serious interest.” And again the same judge, in that case, with much force announces the following eminently just and correct proposition for the government of such companies: “ When the general nature of the communication is plainly disclosed by its terms, instead of requiring the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires further information about such matter, for him to obtain it from the sender, and if he does not do so, to charge his principal with the information that inquiries would have developed.” In Telegraph Company v.

Moore, supra, Justice Gaines, delivering the opinion of the court, said: “ We are of opinion that tested by the rules announced in the cases cited, the message under consideration was sufficient to reasonably apprise the defendant of the consequences of its failure to deliver the message according to contract. The conclusion to be drawn from the language of the message is, that a near relationship existed between the person mentioned in the message and the person to whom it was addressed, and that upon its receipt the latter would probably set out at once to attend his relation in his extremity.

Such being the case, it would be unreasonable to hold that the company, upon the receipt of the message, should not have contemplated the consequences which were likely to result to plaintiff from a failure to transmit it with diligence and dispatch,” In the case now before the court, the message was addressed to W. S. Carter, and notified the company that Gorsuch was dead; that Carter was in all probability a near relative with “a serious interest” in the intelligence communicated, and in all probability upon the receipt of the mes-¡age would set out at once to attend the funeral and to care for the remains.

The probable purpose of adding the word “ answer ” was to learn whether or not the message was delivered, and whether or not the party addressed would be able to arrive in time to attend the burial or to direct it.

From the rules laid down in the foregoing decisions of this court, this plain and just rule may be deduced: The telegraph company is chargeable with notice of the relationship that exists, if any, between all parties named in the message, and with notice of such purposes as may be reasonably inferred from the language used, in connection with the subject matter of the communication, taking into consideration the usual manner of expressing messages sent by this means.

The plaintiff in error presents also the following assignment of error: “ The court erred in rendering judgment for the plaintiffs beyond 25 -cents, the cost of the message, and of this suit, because the facts in evidence show that the damages awarded plaintiffs over and above the cost of the message are not such as could or will be deemed to have been in contemplation of the defendant at the time of entering into the contract as probable consequences of the breach complained of.” This objection is well taken to the judgment, on two grounds. First.

The $20 adjudged to plaintiffs for the extra expense of exhuming the body and removing it to a different place can not by any stretch of imagination be regarded as proximately the result of the failure to deliver the message in due time. It could not have been foreseen that if the message were not delivered promptly, or if not delivered at all, the persons in charge of the remains would inter it in a place that would not be satisfactory to Carter, nor could it have been known that in such event Carter would desire to disinter and remove the body. Second. In determining the amount of the damages to Mrs.

Carter on account of the grief caused to her. the court says, in its finding of facts, that “ in addition to the sorrow and grief that Mrs.

Carter necessarily suffered because of the death of her father, her failure to reach Smithville in time to attend the funeral and pay the last sad tribute due from the living child to the dead parent, and the manner and place of his burial, caused her to suffer further mental pain and anguish to her actual damages $1000.” Some part of the $1000 was given for the anguish caused by “the manner and place of the burial.” How much we can not tell, but it is unquestionable that the anguish caused by this fact of “ place and manner ” of burial was not an element of damages proper to be considered by the court.

How could it be said that the burial in an unsatisfactory place, or in clothing unsuitable, were the probable results of the failure to deliver the message, or that such a tiling could or was contemplated by the parties as a consequence of such failure ? Plaintiff W. S. Carter was entitled to recover from the telegraph company the price paid for transmitting the message, and the costs of the District Court, but he was not entitled to recover the other amounts; and the judgments of the District Court and the Court of Civil Appeals are reversed, and judgment is here rendered for W. S.

Carter against the Western Union Telegraph Company for the sum of 25 cents and all costs of the District Court, and in favor of the Western Union Telegraph Company against W. S. Carter for all costs of the Court of Civil Appeals and of this court. Reversed and rendered. Delivered June 22, 1893.