Cumberland Telephone & Telegraph Co. v. Atherton

OPINION by- Judge O’Rear — Reversing. Appellee resided at Cunningham, a village about 10 miles 1 distant from Bardwell. Her sister, Mrs. Hooper, lived at Mayfield, which, is about 35 or 40 miles from Cunningham. Appellant operated a telephone line between Mayfield and Bardwell. But there was no telephone line at Cunningham, nor was there a telephone or telegraph station nearer to Cunningham, than Bardwell. On October 14, 1904, a telephone message was sent over appellant’s line from Mayfield to appellee, addressed to her at Cunningham, stating that her sister, Mrs. Hooper, was dying, and to come at once'. Appellant’s manager at Bardwell. agreed with the sender of the message to deliver it for $2, which was paid. At Bardwell the message was written out as sent over the line, inclosed, in an envelope addressed to appellee, and delivered to a special carrier employed by appellant for. the purpose, to be delivered to appellee. The carrier pro157 eeeded in a buggy to Ouiminghain. There were three persons who lived there bearing the name of Alice Atherton. The one first seen opened the message and read, it, and explained that she was not- the proper person, but told the messenger where the addressee resided. He went on and on inquiry was directed to another Alice Atherton, who was the daughter-in-law of tire addressee, and who lived a short distance, perhaps a block, away. The messenger then learned that the person for whom the message was intended was not then at home, but Vas on a visit to another daughter-in-law some 8 or 10 miles away, being also about that distance from Bardwell. There is some conflict in the testimony whether the messenger then undertook to deliver the message to Mrs. Atherton, Sr., or whether he then left it with- Mrs. Atherton, Jr., and refused to go further with it. At any rate, he did not deliver it, nor did he report to the sender that he was unable to deliver it. The next day he saw a man who was going to the neighborhood where appellee was visiting, and told him of the message. In this way-appellee first learned that a message had been sent to her, but she did not then learn its contents. She hurried to a telephone station four or five miles away, and upon calling up a neighbor to her sister at May-field learned that Mrs. Hooper was dead, and that they were then at the cemetery to bury the body. This suit wlas brought by appellee against appellant to recover for her mental anguish, on account of the breach of its contract, whereby she was deprived from attending the burial of her sister, and of seeing her ' before she was buried. A verdict and judgment for $300 was rendered in her favor. The rule which is applied in this State to actions [158] for damages against telegraph, companies for nondelivery of messages in certain cases, allowing a recovery'for mental anguish, applies with every reason to telephone companies. South Western Telephone Co. v. Taylor, 26 Tex. Civil App. 79, 63 S. W. 1076. The nature of the service to be rendered is quite similar, and in this case was identical with that usually done by telegraph companies. The message was to be transmitted to the end of the company’s line, there reduced to writing, and delivered by special carrier to the addressee at a remote point, beyond, the company’s free delivery limits. The contract in this case was to transmit and promptly deliver the message, to appellee at Cunningham, using the telephone line as far as Bardwell, and thence the service of a special messenger. It was not to deliver the message unconditionally, or at all. events, but to deliver it at Cunningham. The consideration paid was based upon that undertaking. When the messenger with expedition arrived at Cunningham and found that, the addressee of the message was not in the town, but was many miles away, appellant had done all that it could do or was required to do under its contract, unless it was to report to the sender of the message the fact that it could not be delivered. Telegraph and telephone companies cannot know the residence of all persons for whom they accept message^. Unless they in fact know, and accept and undertake to deliver the message, although the addressee is not within a reasonable free delivery limit of''the receiving office, the implication is that tile parties undertook that the sender represented the addressee to be at the point to which the message was addressed, and that the company undertook to [159] use all reasonable diligence and dispatch, to find the. addressee at that point and deliver the message there. Western Union Tel. Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148. The same rule of construction applies where the company accepts a message to he delivered beyond its line and free-delivery limit; that is, that it undertakes to deliver the message to the person addressed, at the place addressed. The alleged agreement of the messenger to take the message on to appellee, beyond its destination, was nudum pactum, and without the scope of his authority to bind appellant. The nature of his agency, a mere messenger, was notice of the limitation upon his power to enter into contracts for the telephone company extending its liability, even if there had been a consideration paid to him for doing so. Stamey v. W. U. Tel. Co., 92 Ga., 613, 18 S. E. 1008, 44 Am. St. Rep, 95. Appellee contends that the error in instructing the jury that they could find against appellant, if the special messenger agreed to deliver the message to her beyond Cfihninham, is harmless, because it was appellant’s duty at least to have reported to the sender of the message that it could not be delivered, and that .then other means would have been adopted to have communicated that night the information the message contained. We think the probability of all the things happening so as to produce the result contemplated is too-remote to be the basis of a recovery for damages. It supposes that the sender of the message would have undertaken at that late hour to send another; that the company would have entered into another special contract for a delivery beyond its limits; that the mesenger would have found appellee; [160] that it would have readied her in time; and that she would have gone to her sister ’s bedside. The result is too remote, is highly speculative, and not proximately related to the breach complained of, to wit, the failure to notify the sender of the message that it had not been delivered. Under the evidence in this case the court should have peremptorily instructéd the jury to render a verdict for appellant. Judgment reversed, and cause remanded-for a new trial under proceedings -consistent herewith.