Southwestern Bell Telephone Co. v. Buckner

LEVY, J. (after stating the facts as above). The instructions given by the court to the jury are expressed in proper terms of law, and no fault can be found in them. This conclusion eliminates from the consideration of the case many of the questions sought to be raised by the assignments of error. The main question presented in the appeal is that of whether or not the mental disturbance caused to .the appellee by the appellant, such as the evidence shows, can be held to be an element of the damages resulting from the breach of contract, for which a recovery is allowable under the law. According to' the evidence the appellee’s husband Became ill with pneumonia on December 16, 1923, and continued to grow worse until he died at 6:10 a. m. on December 26, 1923. At that date of December 16 the telephone in the appellee’s house was not in good working order, and “in a few days” afterwards, about December 20, got in the condition that appellee “could not get central at all.” The appellee desired to have the telephone in good working order because, as she stated, “it appeared to me necessary to obtain a doctor for my husband on short notice.” Thereupon, on December 24, 1923, at between 9:30 and 10:30 o’clock in the morning the appellee sent' the telephone to appellant for repair, stating the special circumstances of her husband’s sickness and the need of the telephone for communicating quickly with the doctor. It appears that the telephone was not returned to the appellee’s home until the next day, December 25, 1923, at noon, and it still failed to work. The appellee’s state of mind, in virtue of the situation, is described by her as follows: “When my telephone went out and I could not talk over it, I had to go or send some one to the home of Mr. Gene Sanders to talk over his telephone. * * * Not being able to get in communication with the doctor on short notice made me nervous, like any one else would be that wanted a doctor, and, of course, it hurt me and made me nervous. * * * The fact that I could not get a doctor or doctors at the time I wanted them had an effect on my feelings and mind.” But, in the light of the undisputed evidence, no facts appear, aside from the serious illness of the husband, which were reasonably calculated to produce in the mind of the appellee serious anxiety on account of the telephone in her home being out of order. The doctor was each day regularly attending the husband, and he knew all about his serious condition and thé need of coming back again. Appellee knew this fact, and she further knew that the telephone of her. neighbor, Mr. Sanders, was being used at her instance by those present attending upon her husband, for making special calls for the doctor. During all the time from December 20, when the telephone ceased' to work, to December 26, inclusive, when her husband died, the appellee had free use of, the telephone at Mr. Sanders’ home whenever it was needed, and no appreciable delay or loss of time is shown in making calls for the doctor, due to the resort of using the telephone at Mr. Sanders’ home. Neither was there any failure of effort, on account of telephone service or lack of it, to have the doctor called when needed, due to the resort to the telephone at Mr. Sanders’ home. All of these facts were known to appellee, therefore it is apparent that the facts do not furnish a substantial cause of action for damages for mental anxiety for which a recovery can be had. And even assuming for the moment that appellee did suffer reasonable anxiety, the appellant nevertheless would not, in view of the evidence, be legally liable for such element of damage for the breach of contract to repair the telephone. It was not the appellant’s duty, in the evidence, to repair or to keep the telephone in repair. The appellant had only rented the particular telephone, as such, to the appellee, and did not own, control, or manage the rural party line. It was the appellee’s duty to repair the telephone and keep it in repair. The repair of the telephone on the particular occasion was by and under a special agreement with appellant to do so. Mental anxiety or distress of mind is not an element of damage legally recoverable for the simple breach of a special agreement, as here, to repair a telephone box. Moreover, treating the case as an action for tort, as the parties seem to have done, for breach of a corporate duty of the appellant, in knowledge of special facts, to repair the telephone and re-establish telephone communication in the appellee’s home, it is difficult to distinguish the case in prim ciple from the case of Rowell v. Telegraph Co., 75 Tex. 26, 12 S. W. 534. That case ruled that “mere continued” or prolonged “anxiety” is not an element of damages recoverable at law. The “anxiety” there existed before the default sued on. Quoting from that case: “The damage here complained of was the mere continued anxiety caused by the failure promptly to deliver the message. Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most cases, but the cases are rare in which such emotion can be held an element of damages resulting from the breach. For [902] injury to the feelings in such cases the courts cannot give redress.” The following cases adhere to the Rowell Case: Johnson v. Telegraph Co., 14 Tex. Civ. App. 536, 38 S. W. 64; Telegraph Co. v. Giffin, 93 Tex. 530, 56 S. W. 744, 77 Am. St. Rep. 896; and others. Quoting from Telegraph Co. v. Edmondson, 91 Tex. 210, 42 S. W. 549: “We have neither authority nor inclination to extend the right of recovery in this class of cases beyond the limits already fixed by the decisions of this court.” In the instant appeal it is made to appear from the facts that the appellee’s anxiety that she be able to quickly notify the doctor to attend her husband had its inception and origin at the time the telephone ceased to work, about December 20. That anxiety was not proximately caused by the appellant’s default, and the appellant’s default subsequent to that date did not, as admittedly shown, operate to cause or originate any different state of mental distress. The mental anxiety originally created by the situation beginning on December 20 was, at most, merely continued or prolonged and no more, through the appellant’s failure to repair the telephone. Hence there is established by the facts no more than “the mere continued anxiety” of the appellee, having origin before the date of the appellant’s alleged default. The controlling facts are not essentially different from the Rowell Case, and that case would rule the present one. The instant case is quite different from, and not comparable with, the case of Telegraph Co. v. Cavin, 30 Tex. Civ. App. 152, 70 S. W. 229, and other like cases cited. In that case there was more than “mere continued anxiety” appearing. The state of mind in that case, authorized by the existing facts, was to the degree of “mental anguish” originally and solely resulting from the negligent failure to deliver the telegram to the doctor in time to come and give medical aid to the sick child. There was actual and appreciable delay in having medical attention for the child, very hurtful in consequence. The appellee further claims that she suffered mental distress over the fact that she could not quickly notify relatives of the death of her husband. Uneasiness so occasioned cannot, in view of the evidence, be made the subject-matter of contract. Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127. The evidence does not show any reasonable ground upon which to predicate liability against appellant for damages for anxiety or distress in this respect. The appellee testified: “When my husband died I gave directions about who was to be phoned to and telegraphed to. * * * My husband was dead, and I did not feel like attending to it under the circumstances.” At the special instance of appellee, Mr. Browning and Mrs. James notified the relatives, and no delay in notifying them appears further than ordinarily would have happened had the telephone in the appellee’s house been in good order. Mrs. James testified: “Mr. Buckner died at 6:10 o’clock a. m., and I got to Mr. Sanders’ home at 6:20 o’clock a. m., about 10 minutes thereafter.” The judgment is reversed, and judgment is here rendered in favor of appellant, with costs of the trial court and of appeal.