78 Tex. 305 | Tex. | 1890
There is error, we think, in the judgment rendered in the7court below. W. M. Andrews, the appellee in this case, resided in the town of Greenville, Texas. His mother died in the town of Jacksonville, Texas, on the 22d of January, 1888, a few minutes after 5 o’clock in the evening. At about 11 o’clock that night he received the following message, sent from W.JML- English from Jacksonville: “'Gome on first train. Your mother fell dead.” The first train which could have taken him to Jacksonville after the receipt of the message left Greenville between 4 and 5 o’clock p. m. on January 23 and reached Jacksonville at 10 o’clock p. m. on the same day. This train hé took and arrived at Jacksonville at 10 p. m.
Before leaving Greenville he sent through appellant’s agents the following message to his brother at Jacksonville: “I will be there to-night.” This message reached that place about 10 o’clock on the morning of January 23, and was delivered to his brother on the same day about 4 o’clock p. m., and prior to the burial of his mother and about the time preparations were being made to start with the body to the cemetery. The burial, however, was not delayed, but took place about five hours before Andrews arrived at 10 o’clock p. m. Such are the facts, in substance, on which this suit was brought by him against the appellant to recover $5000 actual and $5000 exemplary damages resulting from the delay on the part of appellant in delivering appellee’s message to his brother announcing his intention to arrive at Jacksonville that night, and by reason of which he was prevented from being p'resent at the burial of his mother. The right to recover is predicated on the claim that if the telegram had been delivered earlier the burial of his mother would have been postponed until his arrival, and that having been delivered on the 23d January at about
There was a verdict and judgment for appellee for $250. This judgis before us on appeal.
Several errors are assigned. "VVe do no not think it necessary to consider each of them. Among them is the third, which complains of the refusal of the court to give this charge: "If you find and believe from the evidence that the message from W. M. Andrews to T. G. Andrews was delivered to him prior to the burial of Mrs. Anna Andrews, and the relatives of Mrs. Anna Andrews, notwithstanding the delivery of said message, buried her, then you are instructed that plaintiff can not recover the damages claimed by him for being denied the privilege of being present at the burial of the mother.”
Although the court may have in general terms submitted the question contained in the foregoing instruction, the facts of this case required that it should have been pointedly presented to the jury, as indicated in the requested charge.
The sufficiency of the evidence to support the verdict and judgment is questioned by the last assignment.
It is unquestionably beyond controversy that at the time of the receipt by appellee of the message, at 11 o’clock at night of January 22, announcing his mother’s death he could not under any circumstances disclosed by the proof have reached Jacksonville before 10 o’clock on the night of January 23. This was a fact as obvious to those sending the message as it was to him. Yet his relatives at Jacksonville made all the necessary preparations for the funeral and buried his mother about five hours prior to the earliest period of time they knew it was possible for him to arrive.
The message announcing his coming was received by his relatives before the burial, and it could have been postponed- until he arrived. This, however, was not done by those who alone possessed the right.
Whatever damage he sustained was, we think, occasioned manifestly by the failure of his relatives to postpone the burial until his arrival. Under such facts it can not be seriously insisted that appellant is liable.
We think the judgment should be reversed and remanded.
Reversed and remanded„
Adopted October 28, 1890.
