Western Union Telegraph Company v. H. A. Waller, 96 Tex. 589

WILLIAMS, Associate Justice. Defendant in error recovered in the District Court the judgment which was affirmed by the Court of Civil Appeals against plaintiff in error for damages for negligent delay in delivering a telegraphic message sent from Jacksboro, Texas, to Duncan,- I. T., summoning defendant in error to the bedside of his mother who was dangerously ill at the former place. The mother died and plaintiff claimed that, in consequence of delay in delivery of the message, he was unable to reach her before her- death and suffered the mental anguish for which he recovered.

Evidence was admitted 'in behalf of plaintiff in the .court below, that, before her death, his mother “made inquiries and requests with reference to her son often and frequently, and kept calling, 'Harvey, why don’t you come to me?’ ” Objection .was properly made by defendant that the evidence was “hearsay, incompetent for any purpose, and was offered for the purpose of prejudicing the defendant’s case before the jury, and was reasonably calculated to inflame the minds of the jury against defendant, and that such testimony was irrelevant.” We are of the opinion that the testimony was irrelevant and was calculated to excite unduly the sympathies of the jury, and to cause them to lose sight of the true inquiry, which was the effect produced upon plaintiff, himself, by defendant’s negligence.

The direct and immediate tendency of the evidence was to show a state of mind of the mother, existing under circumstances and with incidents strongly appealing to the" feelings of those trying the case. The state of mind and those incidents were, themselves, not involevd in the issue being tried. They had, as we have said, a strong tendency to improperly influence the decision of the real issues; and they should not, therefore, have been allowed to come into the case,' unless, circumstantially, they tended in an appreciable degree to establish some fact which was at issue.

It is urged that the demeanor of the mother tended to show her feelings for the son and that this tended inferentially to prove the existence of a corresponding feeling on the part of the son for the mother, and. the case of Western Union Telegraph Company v. Lydon, 82 Texas, 364, is relied on to sustain the contention. In tfyat ease evidence was admitted that plaintiff was “his mother’s favorite son” over the objection that it indicated what the mother’s feelings were, which was not the issue.

After remarking that the objection was not made at the proper time Judge Henry adds: “But if it had been, we do not think it should have been excluded upon the objection made to it.

While juries in the absence of any evidence on the subject may act upon their own knowledge of the affection subsisting between a mother and son, still the admission of evidence upon the subject may be proper, and we can not say that proof of a special regard felt and shown by a mother for one of her children may not be properly considered by the jury, in connection with other circumstances, in estimating the feelings of the child for the parent.” One difference between that case and this is that the evidence there offered was direct proof of the feelings of the parties toward each other, the form of the statement being such as naturally expressed the existence of a reciprocal feeling between mother and son; while here, inquiries and exclamations of a ■ dying mother are offered, from which is to be first drawn an inference of her feelings for her son, and then, from that, another inference of the feelings of her son for her.

For such a‘purpose the evidence was too remote; and in addition to the objection arising from the slight and remote character of the inference, a deathbed scene is reproduced of such peculiar pathos that its influence would be almost sure, under a ruling admitting it as proper subject for consideration, to usurp the attention of the jury to the exclusion of those considerations which alone should control their action.

It is to be observed of the Lydon case, and other decisions of this court, that properly understood, they only admit evidence to prove the existence of those feelings which the jury might, from their knowledge of human nature, ■ presume to have existed, in the absence of proof, and, perhaps, the extent to which they existed in the particular case (Western U. Telegraph Co. v.

Adams, 75 Texas, 535); and the evidence in all of the cases was such as tended proximately to show the existence of the feeling, and was not, like that here relied on, mischievous in itself and relating only very remotely to the question under investigation.

It is very probably true that a repetition to plaintiff of these expressions by his mother of her yearning for his presence would add poignancy to the anguish which his failure to see her before her death occasioned; but there would be no end to an inquiry into the effects of such an action and reaction of mind upon mind; and, "accordingly, the decision of this court in Telegraph Company v.

Stiles, 89 Texas, 312, wisely confined the recovery to damages for such injury to such feelings as ordinarily arise from the failure to deliver such a message, and excluded evidence of aggravation of the character of that here in question. The evidence, in our opinion, should have been excluded.' The contention that, as damages for mental anguish are not recoverable in the Indian Territory, where the message was to be delivered, they can not be recovered in this State, was decided adversely to plaintiff in error in Telegraph Company v. Cooper, 69 S. W. Rep., 427, in which this court refused a writ of error.

Reversed and remanded.