Western Union Telegraph Co. v. Hoffman

HENRY, Associate Justice. This suit was brought by August Hoffman for himself and as next friend of his minor son Kelly Hoffman, to recover damages caused by the neglect of the defendant to deliver the following telegraphic message: “Spring, Texas, August 6, 1889. - “To Doctor Dutton, Conroe, Texas: ■ “Come on first train; Kelly Hoffman broke his árni. [Signed] . “Henry Hughes.” The father of Kelly was away from home when his son was hurt, and the message was sent by direction of his wife, the mother of the boy. The message was received at Conroe, where Dr. Dutton lived, on.the day that it was sent, but was not delivered to him until he inquired for it of the agent of the defendant on the 15th of the same month. Eo excuse for the failure to deliver it was offered. Kelly was 15 years old when he was hurt. His injury was a dislocation of his arm at the elbow. ■ Dr. Dutton was the physician of plaintiff’s family, and testified that if the dispatch had been delivered to him *423 he would have responded to it within twenty-four hours and would have reset and saved the arm. The testimony shows that the same thing could have been done at any time within a few days after the injury occurred. Ho other dispatch was sent and no further effort was made to pro-cure the aid of .Dr. Dutton or any other physician. Hothing seems to have been done to remedy the dislocation, and the result followed that when the wound healed it left the arm stiff and permanently disabled. On the 15th day of August, or nine days after the injury occurred, Dr. Dutton happened to be passing by the residence of the parents of the youth and was seen and called in. He then examined the arm but did not undertake to treat it. He testified that it was then too late to reset it, and that the attempt to do-so would have been attended with great danger to the patient. He. was corroborated in this particular by the evidence of another physician who saw the patient at the same time that he did; but his' opinion was disputed by several physicians who testified as experts, and who-stated that the dislocation, in their opinion, could have been remedied at the date of the visit of Dr. Dutton, and that it.should have been then attempted. The defendant pleaded .contributory negligence. Upon the verdict of a jury judgment was rendered in favor of .the father for $900, and in favor of his son for $4125. Ho question was made with reference to the joinder of the two causes of action. The charges and other rulings of the court except upon its motion for a new trial were favorable to the defendant. The only question that we deem it necessary to consider is whether the defense of contributory negligence, was made out. Upon that issue we think it sufficient to say with regard to the contention that the arm could have been reset and cured nine days after it was injured, when Dr. Dutton first saw the patient, that the evidence was conflicting and it was a question for the jury to consider and decide. Upon the othér question, viz., the failure to send another message to Dr. Dutton or procure other medical assistance, which would naturally have suggested itself to any person of ordinary prudence and -intelligence, we think the evidence clearly shows that the permanent character of the injury must be attributed to a want of proper care upon the part of the parents of the injured boy. The evidence shows that proper care upon their part, after it became evident that Dr. Dutton, from some cause would not respond to the message to him, would have either procured his attendance or the assistance of another physician; and we find in the record no evidence whatever, proper to be considered,- to excuse the want of diligence of the parents. Because of such contributory negligence no verdict should have been rendered in favor of the father of the minor for his own benefit, and the one so rendered should have been set aside upon defendant’s motion. *424 Railway v. Coon, 69 Texas, 730; Railway v. Young, 60 Texas, 201; Beach on Con. Reg., 137. But the negligence of his parents can not be interposed as a defense to bar a recovery for the benefit of the minor. Williams v. Railway, 60 Texas, 205; Railway v. Moore, 59 Texas, 64; Beach on Con. Reg., sec. 43, 44. The contributory negligence that precludes him from a recovery must be that of the minor himself, and whether it existed or not was a question for the jury to decide, taking into their consideration the age and situation of the minor and all other circumstances connected with the case. Evansich v. Railway, 57 Texas, 126; Railway v. McWhirter, 77 Texas, 356; Cook v. Direct Nav. Co., 76 Texas, 353. In the case of Plumly v. Birge, which was an action of. tort by a minor 13 years old for an injury done him by a dog which he caused to bite' him by striking him, the Supreme Court of Massachusetts said: “It was necessary that the plaintiff, though a boy, should prove that he was in the exercise of due care. But due care on his part did not require the judgment and thoughtfulness which would be expected of an adult under the same circumstances. It is that degree of care which could reasonably be expected from a boy of his age and capacity. If the court had ruled that if the plaintiff was old enough to know that striking the dog would be likely to incite him to bite, he could not recover, it would have been erroneous. This is not the true test. It entirely disregards the thoughtlessness and heedlessness natural to boyhood. The plaintiff may have been old enough to know, if he stopped to reflect, that striking a dog would be likely to provoke him to bite, and yet in striking him he may have been acting as a boy of his age would ordinarily act under the same circumstances.” 124 Mass., 57. In the case before us it may be well doubted whether a child 15 years old had sufficient experience or discretion to correctly estimate the consequences of the failure to have his injured arm properly treated, especially when his mental and physical condition caused by the injury are considered. The evidence shows that his wound required the treatment of a skillful physician. The employment of one involved an ob-. ligation, by a contract express or implied, to pay for his services. If it be conceded that the circumstances were such that he could have procured the required attention at the.expense of his father, it still can not be maintained that his failure to do so vas such negligence as should be held to preclude his recovery and absolve the defendant from liability for its undisputed negligence. We think the judgment should be affirmed as to the minor Kelly Hoffman, and reversed and the cause be remanded as to the individual judgment in favor of August Hoffman, and it will be so ordered. Affirmed in part. Reversed and remanded in part. Delivered March 24, 1891. *425 Stewart & Stewart,- for appellant, argued a motion for rehearing. W. P. Me Comb, resisting. The motion was transferred to Austin, and there refused.