Western Union Telegraph Co. v. Broesche

Acker, Judge. Appellee carried his wife from their home near Burton to Austin for medical treatment, Dr. Hons, their family physician, accompanying them. The wife died at Austin on Sunday, July 17, 1887, and Dr. Hons and appellee went to appellant’s office in Austin between [657] 6 and 7 o’clock p. in. on that day and delivered to appellant the following message: “ Mrs. Broesche is dead; will bring corpse on train to-night. “J. M. Hons.” This telegram was addressed to appellee’s brother-in-law, Hoffman, at Burton. Appellee paid the charges for transmitting this message, and left Austin with his wife’s body that night by train, arriving at Burton about 1:30 a. m. on the 18th of July. The message ivas not delivered until about 8:30 a. m. the next day after it was deposited with appellant’s agent in Austin, and some hours after the arrival of the corpse. This suit was brought by appellee to recover damages for the alleged negligent delay in delivering the telegram. The trial was by a jury and resulted in verdict and judgment in favor of appellee for $1168, from which this appeal is prosecuted. The court charged the jury to the effect that if they found that Hons delivered the telegram to appellant’s agent in Austin, as alleged, they would then find whether or not in so delivering it Hons acted on behalf of appellee and at his request, and that if they found Hons did not so act, they should return a verdict for appellant. It is insisted that the court erred in giving the charge in this, that it fails to submit the question whether appellant had notice that Hons was acting as appellee’s agent in contracting for the delivery of the message. No special instruction was requested to cure the alleged omission here complained of. Besides, we are of opinion that it was immaterial whether appellant was notified that Hons was acting as agent for appellee or not. We can not see how this could have affected the rights or influenced the conduct of appellant’s agents. Appellee and Hons were together in the presence of the agent to whom the message was delivered at Austin. Appellee paid the charges for transmitting the message; the operator to-whom the message was delivered testified that he knew from the wording of the message that it demanded prompt delivery. Conceding that appellant was not informed that Hons was acting as agent for appellee, we •are unable to understand how the lack of this information affected in any way the the conduct of appellant’s agents. It does not appear that they would have done more or acted differently under the contract. Story on Agency, secs. 418, 420. We think, however, that appellant was sufficiently informed of the agency of Hons. We think there was no error in the omission in the charge complained of by the third and fourth assignments of error. The court charged the jury to the effect that the fact that appellant’s office at Burton was closed at the time its agent at Austin received the message for transmission would be no defense for failing to transmit and deliver the message, and it is contended that the court erred in this charge. [658] We think the court did not err in giving this charge. The contract to transmit the message was made by appellant through its agent, who was fully authorized and empowered to make it; we do not think appellant can excuse its failure to perform the contract upon the ground that another one of its servants', acting' under authority from appellant, had rendered the performance of the contract impracticable. • It is also contended that the court erred in charging that the jury might take into consideration mental anguish and suffering as elements of damages if they should find for appellee. The point here presented had been ruled against appellant by several decision of this court. Stuart v. Telegraph Co., 66 Texas, 581-586. It is also contended that the message having been written on a printed blank containing a stipulation that appellant would not be liable in damages for delay in transmitting or delivering the message beyond the cost of transmitting unless it was repeated, the court should have charged the jury that if they found that the message had not been repeated then they should return a verdict for appellant. We think the court did not err in refusing to’ give the special charge asked by appellant upon the stipulation contained in the printed blank. It has been decided that the stipulation requiring messages repeated can not be invoked in defense of an action to recover damages for delay or failure in delivering the message. G. C. & S. F. Ry. Co. v. Wilson, 69 Texas, 739. We do not think that appellee's right of recovery was dependent upon the jury finding appellant guilty of gross negligence, and we think the court did not err in refusing the special charge requested by appellant to that effect. ¡Negligence by appellant in failing to deliver the message, without regard to the degree of such negligence, would render it liable for such damage as was the direct and natural result of such failure to deliver. Ry. Co. v. Wilson, supra. Appellant requested the court to instruct the jury to the effect that appellee could not recover damages by reason of his failure to accomplish any purpose not shown by the face of the message unless appellant had notice of such exterior purpose at the time the contract was made. The special instruction was refused and this is assigned as error. The court charged the jury that appellee could only recover such damage as was the direct and natural result of the failure to transmit and deliver the message. The operator at Austin to whom the message was delivered testified that he knew from the message that appellee's wife was dead, and that they expected to convey her body to Burton by the train that night, and that unless the telegram was delivered the evening he received it the corpse would reach Burton before the telegram. The purpose of appellee in informing Hoffman of the death, and the fact of conveying the corpse to Burton by train, was too obvious to require explanation. We think the special charge asked and refused was [659] not called for nor authorized by the facts, and that the court did not err in refusing to give it. It is also contended that the verdict is excessive, but under the previous decisions of this court we can not say that it is. Mental anguish or distress being an element of actual damage for which the law furnishes no rule for estimating, its measure is left to the discretion of the jury. Unless it appears that the jury have acted from passion, prejudice, or other improper influence, the verdict will not be vacated on the ground of excessiveness alone. We are of opinion that the judgment of the court below should be affirmed. Affirmed. Adopted February 12, 1889.