Rowell v. Western Union Telegraph Co. , 75 Tex. 26 ( 1889 )

GAINES, Associate Justice.

The following statement of this case is taken sustantially from appellant’s brief:

Appellant and his wife reside at Jefferson, Texas, and on the night of October 7, 1887, received through the defendant the following telegram:

“Athens, Texas, October 7, 1887.

“ To Mrs. Josie Rowell, Jefferson, Texas, care of J. II. Rowell:

“Your mother is worse; come if you can; dangerously sick.

[Signed] “W. C. Scott.”

Early next morning appellant delivered to and paid appellee the regular charge (forty-five cents) to send the following telegram:

“ To -W. G. Scott, Athens, Texas:

. “How is mother? If no better, Josie comes to-night. Answer—my expense.

[Signed] “ J. H. Rowell.”

This telegram, constituting said Scott as appellant’s agent "to convey to him this information, was promptly delivered, and at once in reply thereto, and in pursuance of such agency, the said W. C. Scott delivered to and contracted with appellee to send immediately the following reply:

“Athens, Texas, October 8, 1887.

“ To J. H. Roto ell, Jefferson, Texas:

“ Telegram received. Mother some better. Doctor said not dangerous.

[Signed] “W. C. Scott.”

This message appellant charges was never delivered at all, through the negligence of appellee’s agents and servants. Appellant alleges actual damages from the failure of appellee to perform its contract undertaken at Athens, from loss of time and business to himself and mental distress, at $100, and for mental and physical sufferings of his wife, $2400.

The appellee filed a general demurrer anil a general denial. The court upon the general demurrer dismissed the petition and the cause, and appellant prosecuted this appeal.

The only assignment is: “The court erred in sustaining defendant’s general demurrer to plaintiff’s petition and cause of action, and in dismissing the case over plaintiff’s exception.”

We are of the opinion that the demurrer was properly sustained. The damage here complained of was the mere continued anxiety caused by the failure promptly to deliver the message. Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most cases, but the cases are rard in which such emotion can be held an element of the damages resulting from the breach. For injury to the feelings in such cases the courts can not give redress. Any other rule would result in intolerable litigation.

We regard this case as differing in jmnciple from that of Stuart v. Telegraph Company, 66 Texas, 580, and others in which damages for mental suffering have been allowed.

The only damages recoverable under the petition was the price of the message—a sum of which the court had no jurisdiction. The suit was therefore properly dismissed, and the judgment is affirmed.

Affirmed.

Delivered November 5, 1889.