264 S.W. 118 | Tex. App. | 1924
W. H. Wood brought this suit against the telegraph company, to recover damages for failure of said company to deliver a telegraphic message sent from Mineola, Tex., to Hedley, Tex., addressed to him, care of Mrs. Hattie Cathey, announcing the serious illness of his sister. It was alleged *119 that the failure to receive the information contained in the message prevented the plaintiff from reaching the bedside of his sister before her death and the damages sought to be recovered are for mental anguish caused thereby. The appeal is from a judgment for plaintiff on verdict of the jury.
The telegraph company alleged that the telegram —
"was an interstate one, originating at Mineola, Tex., and being sent from there to Dallas, Tex., and there relayed to Oklahoma City, Okla., and from there to Amarillo, Tex., thence to the place of destination. And by reason of the fact that such message was an interstate one, no damages can be recovered by plaintiff as mental anguish is not an element of damages in an interstate message; that the defendant in sending and routing said message in the manner above mentioned did so for the purpose of expediting the transmission and delivery of said message promptly."
The court sustained an exception, in the nature of a general exception to its sufficiency in law, to this portion of the answer, and the first three propositions complain of this ruling.
If it be true that the allegation is sufficient to show that the "message was sent in interstate commerce," it would follow that the court was in error in sustaining the exception. Western Union Telegraph Co. v. Speight,
We must say, however, that we are not prepared to announce complete accord with appellant's contention as to the law of this phase of the case. The case was argued on the assumption that, as a matter of fact, the usual and customary course of transmission of messages from Mineola to Hedley did not take them out of the state, but it was urged that the fact that this particular message might have been handled in an unusual way, not in contemplation of the parties at the time of the delivery of the message at Mineola, would make no difference; that the mere fact that the message was sent through another state determined its character and settled the rights of the parties in reference thereto. We believe that the character of the contract, whether interstate or intrastate, as it affects the parties to it, is to be determined more by the facts existing and in contemplation of the parties and so entering into the contract at the time it was made than by what the telegraph company, without the knowledge or consent of the other parties affected thereby, may have subsequently done with reference to it. T. N. O. Ry. Co. v. Sabine Tram Co.,
"That there must be continuity of movement we may conceive, and to a foreign destination intended at the time of the shipment."
In the same case it is also said:
"The essential character of the commerce, not its mere accidents, should determine."
Interstate messages are now subject to rates, rules, and regulations fixed by the Interstate Commerce Commission, which enter into the contract of the parties and determine their rights and liabilities. Western Union Telegraph Co. v. Esteve Bros. Co.,
The reason for giving any importance to such facts is evidently because it was thought that the character of the business was to be determined by the circumstances existing and in contemplation of the parties at the time of the making of the contract. Such were the facts in the Speight Case, relied on by appellant, and the Supreme Court in its opinion, goes into details to show that the message was transmitted according to an arrangement that had existed "for many years." It is true that some of the language in that opinion might furnish some ground for the contention here — that the very fact of the transmission through another state, sporadic and unexpected though it may have been, would give character to the transaction and control the rights of the parties. Such was the interpretation put upon the holding by the Supreme Court of South Carolina in the case of Son v. Western Union Telegraph Co.,
The opinion in the Speight Case cites as authority two former decisions of the same court. Hanley v. Kansas City Southern Ry. Co.,
The admission of testimony that no notice was given the sending office and to the sender that the message had not been delivered by the Hedley office to the addressee, without pleading of such fact as a basis of recovery, was, we think, error. In the case of Western Union Telegraph Co. v. Hicks (Tex.Civ.App.)
The evidence referred to in the fifth proposition was, we think, admissible. Western Union Telegraph Co. v. Lydon (Tex.Sup.)
The message was addressed to W. H. Wood, in care of Mrs. Hattie Cathey. The plaintiff, at the time the message was received at Hedley, was at Memphis, Tex., some 15 miles from Hedley. The plaintiff alleged that if the message had been delivered to Mrs. Hattie Cathey she would have delivered it to him. The court submitted two issues as to delivery — one whether the agent at Hedley used ordinary care to deliver the message to Mrs. Hattie Cathey, and the other as to whether ordinary care was used to deliver to plaintiff. The jury returned negative answers to each of these. It is insisted that the evidence shows that the message was addressed to Mrs. Hattie Cathey, not for the purpose of delivery to the plaintiff but merely for the purpose of locating the plaintiff so that there might be personal delivery to him, that there was no duty of delivery to Mrs. Cathey, and, since plaintiff was not at Hedley, no duty of delivery to him. This contention, thus generally stated, is made the basis of several propositions, complaining of error in the submission of the case to the Jury. Ordinarily the telegraph company may deliver, and it is its duty to do so if delivery is not made to the addressee in person, the message to the party in whose care it is sent. Western Union Telegraph Co. v. Young (Tex.Sup.) 13 S.W. 985; Western Union Telegraph Co. v. Oakley (Tex.Civ.App.)
We are of the opinion that the evidence is sufficient to sustain a finding that, if the message had been delivered to Mrs. Hattie Cathey, it would in turn have been delivered by her to the plaintiff, in time for him to have reached the bedside of his sister before her death.
We find no error in the manner of the submission of the fourth issue as presented in the eighth proposition.
Since we reverse the case on the other grounds, we need not discuss the proposition which asserts that the judgment is excessive.
Reversed and remanded.