Western Union Telegraph Co. v. Sherlin

LEVY, J. (after stating the facts as above). By appellant’s third assignment of error it is contended that, since the proof shows no notice of the circumstances surrounding appel-lee was given to the agent at Chattanooga at the time the message was filed with him, it was error for the court to render judgment for appellee for the special damages, which was mental anguish. The evidence, construed in the light of the direct and cross-examination of appellee, conclusively shows, it is concluded, that the only notice given t>y appellee to the agent at Chattanooga respecting special damages was subsequent to the filing of the message at 7:45 o’clock a. in., and such notice was given on the occasion of his second visit to the telegraph office at 4 o’clock in the afternoon, when he inquired of the agent concerning an answer to the telegram. But, according to the evidence in the record, this court is not warranted in concluding, it is believed, that when the notice was given to the forwarding agent at 4 o’clock such agent had performed his duty of transmitting the message, and did not have it in his possession unforwarded. The inference is permissible from the evidence that the forwarding agent had not at the time of the notice transmitted the message, and, as the trial court could have so inferred, this court must, in support of his judgment, so conclude. The forwarding agent does not testify respecting the transmission of the telegram. The receiving agent says: “I recall distinctly about receipt of the message in question, but do not recall now the time of its receipt,” and does not otherwise fix the time or day when he received it. And the effect of the evidence of Mr. Haney is that at one time the receiving agent told him there was no message in the office, and later admitted to him “that it was there when I called, and he didn’t know why he did not give it to me.” Mr. Haney, it appeared, called at the office on the Oth, 10th, and 11th of October, and on which day the telegram was at such 'office is not disclosed. In view of the facts, therefore, of this case, it is believed that notice to the agent before he had actually forwarded the telegram was sufficient to predicate special damages. Until the telegram had been transmitted by the agent at Chattanooga and the contract in that respect performed, he had power to act for the appellant with reference to the very subject-matter to which the notice re-, lates. It is not thought that this is opposed to the principle laid down in Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518; Id., 89 Tex. 428, 35 S. W. 6. See Bourland v. Railway Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647. By proper assignment of error it is urged that under the facts pleaded and proven the appellee is not legally entitled to recover damages for mental anguish. The child, it appears, did not accompany her parents on the journey from Chattanooga to Texas, for lack of money on the part of her father to pay the railway fare. While at Chattanooga the child was well treated, and stayed at the home of her granduncle. Appellee, as he says, had no fears respecting his daughter while at her granduncle’s. The child subsequently made the trip to Texas safely and was well when she arrived. The mental distress appellee suffered was on account of the fact that he was forced to separate himself from the child and leave her to later continue the journey to Texas by herself; she being young and inexperienced. The fact that the child later made the trip alone should not in the evidence, it is concluded, be held to be the direct and probable result of the failure to deliver the telegram, entitling appellee to recover. Knowing, as ap-pellee did, that the child would have to take the trip alone, it was incumbent upon him to take all reasonable steps to prevent that fact and guard against any mental distress in that respect. And it affirmatively appearing, as it did, that appellee himself did not return nor send any one else to accompany the child, and there being an absence of any evidence excusing appellee from the failure to take such steps to prevent the child from traveling alone, his own conduct, and not the failure to deliver the telegram, would be the proximate cause producing the mental anxiety suffered on account of the child’s traveling alone. It would so appear from the evidence of appellee, and therefore the burden was on him to show negligence proximately causing injury. And the mere fact, it is concluded, of mental agitation, in the *312 circumstances of tlie case, at being separated from the child and continuing the journey without her, does not afford a proper basis for recovery of the damages allowed. Telegraph Co. v. Chamberlain, 169 S. W. 370; Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127. This necessitates the reversal of the judgment and here rendering judgment for appellant, with all costs of appeal and of the trial court. The writer is not inclined to agree to the conclusion of the majority that the situation shown in the evidence is, as a matter of law, not productive of such mental suffering, proximately caused by negligence of appellant, as would entitle appellee to the judgment. We have considered the other assignments of error, and believe they should be overruled. Footnotes [1] ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes