249 S.W. 182 | Tex. | 1923
The following statement and certified question from the Court of Civil Appeals for the First Supreme Judicial District have been submitted to this section of the Commission of Appeals for our consideration, by the Supreme Court:
"This is a suit by Mobley against the Telegraph Company to recover damages for mental anguish by the alleged failure of the company to promptly deliver a telegram advising him of the death of his step-mother.
"The telegram was sent from Farmersville, Texas, by J.L. Chapman, to plaintiff at Houston, Texas, and is as follows: `Mother died five wire if coming and when.'
"The petition contains the following allegations:
"`Plaintiff would further show that at the time of her death his mother, Mrs. Mary F. Chapman (or Mrs. W.D. Chapman), being step-mother to plaintiff herein, was seventy-five (75) years of age; that plaintiff had been reared from childhood by his said step-mother, deceased, and holds and bears toward her deep and sincere affection; that he was greatly distressed and humiliated and suffered untold mental anguish and pain because of the impossibility as herein alleged, of reaching the funeral and burial place of his mother before she was to be interred, all of which was caused by the unreasonable delay in the delivery of said telegram by defendant company, its agents, servants and employees.'
"There is no allegation that the agent of the Telegraph Company was given notice at the time the telegram was sent of the unusual and especial affectionate relationship which existed between plaintiff and his step-mother. The evidence upon the trial duly established this relationship, and the trial in the court below without a jury resulted in a judgment in favor of plaintiff for $750.00.
"The defendant interposed a general demurrer to the petition, which was overruled, and the only question raised by plaintiff in error on this appeal is whether the trial court erred in not sustaining the demurrer.
"The proposition advanced by plaintiff in error is:
"`There being no allegation of notice to defendant at the time the contract of transmission was entered into of any special or unusual affectionate relations subsisting between plaintiff and his deceased stepmother, or of any special circumstances charging defendant with notice of such relations, such as to support a recovery of damages for mental anguish, no cause of action was stated for mental anguish damages and the court erred in overruling the general demurrer.'
"This is a second appeal of the case. On the former appeal this court held that the telegram, which was set out in the petition, gave the Telegraph Company sufficient notice of the relationship between the plaintiff and the deceased, and therefore the general demurrer was properly overruled. Telegraph Company v. Mobley,
"This court is not entirely satisfied of the soundness of our former holding, and deems it advisable to certify the question for your decision.
"Upon the foregoing statement of the record, we respectfully ask:
"Did the failure of the petition to expressly allege that notice was given the defendant at the time the contract for the transmission of the telegram was made, of the especially affectionate relationship between plaintiff and the deceased render the petition bad on general demurrer?"
In cases involving mental anguish caused by the failure to receive a telegram informing the parties of the death of a near blood relation, parent or child, brother or sister, or husband or wife, it is held uniformly by our Supreme Court since the case of Western U. Telegraph Co. v. Brown,
While the application of this rule has been held by the Supreme Court to exclude a relationship by affinity in the case of a brother-in-law, Telegraph Co. v. Coffin, supra, our Supreme Court have indicated to us that they are not willing to extend such holding so as to make it include one who is in loco parentis. It is more often the case than not that the woman who has assumed the burden of being a mother to another woman's children, by her self-denial and by her devoted and painstaking performance of her duties thus assumed, has endeared herself to her step-children and that they have so learned to love her that her loss becomes to them the loss of their mother indeed. The telegram in this case carried on its face the notification that "mother" had departed this life, and, applying the cold doctrine of the law to the facts in this case, we find that the evidence thus discloses that the defendant was charged with notice that the plaintiff's "mother" had died, and on investigation the real relationship existing between the plaintiff and his deceased *532 stepmother could have been ascertained. Hence there is no reason for the extension of the doctrine laid down in the Coffin case so as to make it include the relationship of step-mother and step-son and we conclude that the question propounded by the Court of Civil Appeals should be answered in the negative.
C.M. Cureton, Chief Justice.
