No. 7966 | Tex. | Nov 25, 1942
delivered the opinion of the Commission of Appeals, Section A.
This is a suit for damages for physical and mental suffering alleged to have been sustained by respondent, Mrs. W. L. Homer, because petitioner failed to deliver on time a telegram addressed to her. On jury findings favorable to respondents,
Mrs. Doris Bates, who was a daughter of the Homers residing in Fort Worth, left her ■ son, then five years old, with the Homers, in Gainesville, with the understanding that they were to place him on the train on the evening of August 21, 1939, unless they received other instructions by Western Union wire before 9 P. M. On that day Mrs. Bates called petitioner’s office at Fort Worth by telephone and, after being assured that the same would be delivered to Mrs. Homer before 9 P. M. that night, gave it the following message:
“Mrs. W. L. Homer, 200 Second Street, Gainesville, Texas. Bob may stay. Will write later.” (Signed) “Doris.”
The petition alleged that Mrs. Bates told the company’s agent of her agreement with the Homers in regard to the return of the child and that unless the message was delivered before 9 P. M. that day he would be put on the train at Gaines-ville at 9 P. M. to return to Fort Worth; that Mrs. Bates further told petitioner’s agent that Mrs. Homer had for years been afflicted with heart trouble and that any excitement, strain or fright affected her heart and caused her to become sick; that, although she was assured that the telegram would be delivered as directed, it was not delivered until the next morning; that because thereof the child was put on the train at Gainesville at 9 P. M.; that Mrs. Bates, relying on petitioner’s promise to deliver the telegram, did not meet the train at Fort Worth, and the child was required to “hang around the station,” after reaching Fort Worth, until after midnight; that when Mrs. Homer received the telegram after 8 A. M. the next day, she realized that Mrs. Bates had not met the train; that she, Mrs. Homer, “suffered the most severe and excruciating mental anguish m not knowing what had become of her arandchild, that she became physically sick and sustained a nervous shock which confined her to her bed for several weeks in a highly nervous state causing her to- suffer great physical pain and suffering” as well as mental anguish; that, because of delay in getting telephone connection with Mrs. Bates, it was not until after 11:00 o’clock A. M. on August 22, that she learned that the child was then' safe with his mother; and that during that interval Mrs. Homer “suffered the most severe excruciating pains and mental anguish.” (Italics ours.)
The petitioner’s principal complaint is that both the pleadings and the undisputed evidence shows no injuries suffered by Mrs. Homer except such as resulted from fear and apprehension that something had happened to the child which, in fact, did not happen. This question was raised in the trial court both by general demurrer and by motion for an instructed verdict. At petitioner’s request, the trial court instructed the jury that “in arriving at your answer to Special Issues No. 8, 9 and 10, you are not to take into consideration any mental anguish of plaintiff Mrs. W. L. Homer, * * which she may have suffered as the result of unfounded fears as to what might have happened to her grandson, Bobbie Bates.” Assuming (without deciding) that this instruction was correct and bearing in mind that the jury awarded only $400.00 damages in face of respondents’ prayer for $2,500.00, we think this complaint is without merit, provided there was (1) any pleading in support of injuries, other than such unfounded fears, suffered by Mrs. Homer, and (2) any evidence in support thereof.
We think the allegations of respondents’ petition, as outlined above, claim much more than mental anguish resulting from baseless fears, and that there is at least some evidence to support them. Mrs. Bates testified that around 5 o’clock, November 21, she decided to leave her child longer with Mrs. Homer; that she then called petitioner’s office, explaining the situation and saying that if the message could not be delivered by 9 o’clock that night she did not want to send it because her mother had heart trouble and “I didn’t want to cause her any undue excitement”; that, relying on petitioner’s assurance
In the face of the pleadings and the evidence which we have thus briefly reviewed, and the trial court’s limiting charge, we would not be warranted in saying, as a matter of law, that all Mrs. Homer’s injuries were the result of fear and apprehension that something had happened to the child which, in fact, did not happen. The child did arrive in Fort Worth, at night, with no one to meet him, and did remain in and around the station until after midnight without the presence and care of his parents. Mrs. Homer’s fears to that extent were not unfounded; from 8:45 until around 11:30 the next morning she suffered because of the reality of that very situation. During that interval she suffered “shock,” mental and physical pain, and worry and her heart was affected. These reactions surely were quite natural, in view of the child’s tender age, and they put her in bed and so affected her that she did not recover immediately upon receipt of news of the safety of her grandson but had to remain in bed for several days. Under the jury’s findings, these elements of Mrs. Homer’s alleged injuries must be treated as realities which were within the contemplation of the parties when petitioner accepted the telegram and which it could reasonably foresee as likely to occur when it failed to deliver the telegram by the time specified. This brings the case squarely within the declaration in Western Union Telegraph Co. v.
Petitioner contends that the respondents’ petition states no cause of action because it does not allege that any consideration was paid or agreed to be paid for the transmission and delivery of the telegram. The proposition cannot be sustained. Petitioner is a public service corporation engaged in the transmission of information for hire. Although it customarily charges for its service according to a stated schedule of rates, it may render its service gratuitously, as was the case in Western Union Telegraph Co. v. Snodgrass, 94 Tex., 284" court="Tex." date_filed="1901-01-17" href="https://app.midpage.ai/document/western-union-telegraph-co-v-snodgrass-3981643?utm_source=webapp" opinion_id="3981643">94 Texas, 284, 60 S. W., 308. Consequently, if it is alleged that the telegraph company accepted a telegram and agreed to transmit and deliver it to the addressee, it is unnecessary to allege that any consideration was paid or agreed to be paid. In the case last cited, the petition did not allege payment of any money to the company or fh-u anvone promised to pay it to transmit the message. The undisouted testimony showed that the sender, a sister of the addressee, worked for the company, and that its manager allowed her to send the message free. The Supreme Court said it was not necessary for the plaintiff either to allege or prove, as a condition to recovery, payment or promise of payment of anything to the company either by himself or his sister to transmit the telegram.
Of course, if its stated toll is tendered, the company is bound-to accept the message and to use ordinary care to transmit :and;'deli ver it. Western Union Telegraph Co. v. Snodgrass,
The petition in this case plainly alleges an acceptance of the telegram and a definite undertaking to transmit and deliver the same by a given time. Therefore, it was not necessary to allege a consideration paid or promised. Western Union Telegrap Co. v. Snodgrass, supra; Western U. T. Co. v. Johnson (Civ. App.), 218 S.W., 781" court="Tex. App." date_filed="1920-02-12" href="https://app.midpage.ai/document/western-union-telegraph-co-v-johnson-3935222?utm_source=webapp" opinion_id="3935222">218 S. W., 781 (error refused, by written opinion in 111 Tex. 1" court="Tex." date_filed="1920-01-05" href="https://app.midpage.ai/document/western-union-telegraph-co-v-johnson-3939743?utm_source=webapp" opinion_id="3939743">111 Texas 1, 226 S. W. 671, without the point being considered) ; Western U. T. Co. v. Gold (Civ. App.), 235 S.W., 331" court="Tex. App." date_filed="1921-11-10" href="https://app.midpage.ai/document/western-union-telegraph-co-v-gold-3958967?utm_source=webapp" opinion_id="3958967">235 S. W., 331.
Petitioner urges that the trial court erred in not defining “mental anguish” in his charge to the jury. We think there was no error in that regard, because the plaintiffs alleged and proved other special damages and the jury so found. As already stated, the Homers alleged that, as a part of the conversation between the sender and petitioner’s agent when the telegram was accepted, the agent was told that Mrs. Homer had for years been afflicted with heart trouble and that any excitement, strain or fright affected her heart and caused her to become sick, for which reason Mrs. Bates did not want to send the message unless it could be delivered before 9 P. M.; that the telegram was not delivered until after 8 A. M. the next day, when, because she did not know what had become of her grandchild, Mrs. Homer became physically sick and sustained a nervous shock which confined her to her bed for several weeks in a highly nervous state leaving her to suffer Jreat physical pain and suffering. Mrs. Homer testified that after she received the message and before she heard what had become of the boy, she suffered mental and physical pain, from which she did not recover immediately but was confined to her bed for several days because' her heart was affected. That recovery hinged on these elements of special damage seems to have been recognized by the trial court, because (except in the- limiting charge against
The judgment of both courts below is affirmed.
Opinion adopted by the Supreme Court November 25, 1942.
Rehearing overruled January 6, 1943.