| Tex. App. | Apr 30, 1902
"Cotton Plant, Ark., Jan. 13, 1901. — To Jackson Blake, Paris, Texas: Grandma low sick. Come at once. John T. Blake." The above telegram was on the day of its date delivered by John T. Blake, as the agent of and for the benefit of the sender, to appellant at its office in Cotton Plant, State of Arkansas, for transmission and delivery to Jackson Blake, at Paris, Lamar County, Texas. Though the company accepted the message and received pay for its transmission and delivery, it was in fact never transmitted, nor wirded from Cotton Plant, but remained in the company's office there without any effort on the part of the company or its agents to transmit it at all.
Jackson Blake is the son of the person designated in the telegram as "Grandma." She was then on her deathbed, and died before appellee could have reached her after receiving the message, had it been transmitted and delivered with reasonable dispatch; but if it had been so *225 transmitted and delivered he would have received it in time to have attended her burial, which he would have done.
By reason of the negligent failure of appellant to promptly transmit and deliver the message to appellee at Paris, Texas, he there suffered mental anguish, to his damage in the sum of $325, on account of not being able to be present at the burial of his mother in Arkansas.
These facts are shown by the evidence and established by the verdict, and for the purpose of this appeal are undisputed by the appellant.
The question raised in different forms by the assignments of error, is, do these facts show any liability on the part of appellant for the damages occasioned by mental anguish suffered by appellee in Texas by reason of the company's negligent failure to promptly transmit and deliver the telegram?
It is urged by appellant that contract to transmit and deliver the message was made and broken in the State of Arkansas, where mental anguish is not recognized as an element of damages flowing from a breach of a contract of this character. This to our minds is a very narrow view to take of the question. While the contract was made in Arkansas, it was to be performed by the transmission of the telegram to Paris, Texas, and its delivery there to appellee. From the very nature of the contract, he could receive no benefit whatever from it unless it was performed by the delivery of the message to him at Paris. Such performance was the obligation due him there by the appellant, and its failure to discharge this obligation is the proximate cause of his anguish and damages.
Appellant's failure to send the message out of Arkansas is simple evidence conclusive of a breach of its contract, not of where the breach occurred. The breach occurred where under the contract it was to be performed, and consisted of the nondelivery of the message. This was at Paris, Texas. There the damages flowing from the breach were sustained. There jurisdiction was acquired and the case tried. It is by the law of the State where the contract was to be performed, and was breached in its performance, and the anguish suffered in consequence, the damages should be measured and determined.
In obligations it is the will of the contracting parties, and not the law, which fixes the place of performance, either by express words or implication, as the place to the jurisdiction of which the contracting parties elected to submit themselves. And a contract is governed by the law with a view to which it is made, because, by the consent of the parties, that law becomes a part of the agreement. Pritchard v. Norton,
There is no error in the judgment and it is affirmed.
Affirmed.