Western Union Telegraph Co. v. Beringer ( 1892 )

This suit was brought by appellee to recover damage for the failure of appellant to promptly transmit and deliver a telegraphic message. The plaintiff lived in Gonzales County, Texas, some fifty or sixty miles from New Braunfels, at which place his father died on the 26th day of August, 1890, about 12 o'clock m.

One Kohlenberg, who was plaintiff's brother-in-law, at 1:30 o'clock p. m. of the same day delivered to defendant's agent at New Braunfels a message to be transmitted to plaintiff informing him of the death of his father, and directing him to "come up at once." The message was not delivered to the plaintiff until about 1 o'clock p. m. of the next day. If the message had been delivered promptly the plaintiff could have reached New Braunfels before his father was buried. When he did receive it he went immediately there, but did not arrive until after the burial. The defendant's charge for sending the dispatch was 25 cents, which was paid by Kohlenberg.

Plaintiff claimed compensation for mental anguish caused by his failure to see the remains of his father and to be present at his burial. A judgment was rendered for the plaintiff, upon the verdict of a jury, for $1475.

The grounds of error relied upon for a reversal of the judgment are substantially as follows:

1. That the petition failed to show that there was a contract made with plaintiff for the sending or delivery of the message.

2. That mental suffering and injury to feelings are not grounds for the recovery of damages unless they are accompanied by some pecuniary loss on a violated contract or some actual or physical injury to the party suing.

Substantially the same propositions are presented by appellant in different forms, all of which are settled by former decisions of this court.

It is evident that the dispatch was sent for the benefit of plaintiff. He accepted it, and acquired a right to recover for the breach of the contract made for his benefit by Kohlenberg, notwithstanding the fact that he had not previously constituted him his agent for the purpose. It was not material by whom the defendant's compensation for sending the message was paid, nor whether it was subsequently paid or refunded to the sender, so far as a right of action for damages is concerned. Tel. Co. v. Adams, 75 Tex. 531.

It has been repeatedly decided by this court that compensation for mental anguish may be recovered in such cases. Stuart v. Tel. Co., 66 Tex. 580; Tel. Co. v. Moore, 76 Tex. 66 [76 Tex. 66]; Tel. Co. v. Richardson, 79 Tex. 649.

We do not feel that we would be justified in reversing the judgment on the ground that the amount found by the verdict is excessive.

The judgment is affirmed.

Affirmed.

Delivered March 18, 1892.