60 S.W. 308 | Tex. | 1901
The Court of Civil Appeals for the Fourth District has certified to this court the following statement and question:
"This suit was brought by the appellee against the Western Union Telegraph Company to recover damages on account of the alleged negligence of the latter in failing to deliver him the following message within a reasonable time.
"`Number 151.
"`Sent by S.A.Z.B.J. Rec'd. by 5 D.H. Received at,
"`Dated, San Antonio, Texas, Oct. 18.
"`To Wm. C. Snodgrass, N.
"`No. 345 Main St., Second Floor, Dallas, Texas:
"`Come next train. Mamma sinking.
"`ANNIE SNODGRASS. 7.13 P.'
"Annie Snodgrass, the sender, is a sister of appellee to whom the dispatch was addressed, and was acting as his agent and at his request in sending the telegram. At the time she sent the telegram she was appellant's bookkeeper in its offices at San Antonio; and the manager of the company, for her accommodation, allowed her to send the message free and no charge was made for its transmission, nor was any toll paid for it either by the sender or sendee.
"The appellant failed to exercise ordinary care in delivering the message to appellee, and on account of the delay occasioned by such failure, it was not received by appellee in time to reach his mother's bedside before her death; but if appellant had exercised ordinary care, he would have received it in time and gone to see her before she died. On account of his inability to reach his mother after receiving the message before her death, he sustained great mental pain and anguish.
"The petition of appellee does not allege any payment to appellant, or any pecuniary obligation incurred to it by anyone for the transmission of the message, and the undisputed evidence shows there was none.
"Question: Was it necessary for the appellee to allege and prove, as a prerequisite to his right of recovery, payment or obligation of payment to appellant by either him or his sister for the transmission of the telegram?"
To the question propounded, we answer no. The telegraph company was bound to accept and transmit messages presented to it, with the right to charge toll therefor. Having accepted the message for transmission without compensation, a want of consideration is no defense to an action for damages arising out of its negligence in failing to deliver it. Clavin v. Rhode Island Hospital Co.,
In the case of Clavin v. Rhode Island Hospital Company, above cited, plaintiff sued for damages suffered through unskillful treatment by an *288 employe of the hospital, a corporation, and, among other things, it was claimed in defense that the treatment was gratuitous, therefore the defendant was not liable for damages arising out of the failure of its employe to use proper skill. The court said: "We understand the doctrine of the cases which we have just been considering to be this: That where there is a duty, there is, prima facie at least, liability for its neglect, and that when a corporation or quasi corporation is created for certain purposes which can not be executed without the exercise of care and skill, it becomes the duty of the corporation or quasi corporation to exercise such care and skill; and that the fact that it acts gratuitously and has no property of its own in which it has beneficial interest will not exempt it from liability for any neglect of duty, if it has funds, or the capacity of acquiring funds, for the purposes of its creation which can be applied to the satisfaction of any judgment for damages recovered against it."
In Coggs v. Bernard, before cited, the plaintiff sued the defendant for having negligently caused the destruction of some casks of brandies while gratuitously removing them from one place to another. Lord Holt said: "But, secondly, is objected that there is no consideration to ground this promise upon, and therefore the undertaking is nudum pactum. But to this, I answer that the owners trusting him with the goods is a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory to carry these brandies from the one place to the other such a day, the defendant had not been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but, in such a case as this, it signifies an actual entry upon the thing and taking the trust upon himself. And if a man will do that and miscarries in the performance of his trust, an action will lie against him for that, though nobody could have compelled him to do the thing."
The authorities are uniform that whenever a person receives the property of another and gratuitously undertakes to perform some act with reference to it, negligence in the performance of the act will not be excused by the want of consideration. This case is fully within the letter and the spirit of the authorities, and there was no necessity for the plaintiff to allege that any sum was paid or agreed to be paid for the service of transmitting and delivering the message. *289
