Western Union Telegraph Co. v. Hice , 1926 Tex. App. LEXIS 413 ( 1926 )

The propositions of appellant present, in effect, the points in view that: (1) The relationship of daughter-in-law and father-in-law is too remote to legally authorize a recovery for mental suffering for failure to attend the burial; (2) the addressee of the message was guilty of negligence proximately resulting in her suffering in failing to go to Sherman after receiving the telegram, having the means and opportunity to do so; (3) the amount of the verdict is excessive. It is the settled rule that, in the absence of notice to the telegraph company of special ties of affection existing, the relationship here shown is too remote to infer the fact of mental anguish. Telegraph Co. v. Coffin, 30 S.W. 896, 88 Tex. 94; Tel. Co. v. Wilson, 75 S.W. 482, 97 Tex. 22; Tel. Co. v. Gibson (Tex.Civ.App.)39 S.W. 198; and other cases. But in the instant case sufficient notice was given, although subsequent to the original filing of the message, yet in ample time, while the telegraph company was transmitting and delivering the message. Tel. Co. v. Allen (Tex.Civ.App.) 146 S.W. 1066.

We believe negligence of appellee as a pure matter of law could not be predicated upon the evidence. There is room in the evidence to raise an open issue of fact as to whether or not the appellee was negligent to such an extent as to preclude a recovery.

The amount of recovery, we believe, is excessive in the particular circumstances. The mental suffering in consequence of the death of Mr. Ford is entirely aside from any probable mental suffering from the mere failure to be present at the funeral services and view the interment. The case has not the element of injury of being deprived of the opportunity to be with or attend Mr. Ford before his death. Telegraph Co. v. Bouchell, 67 S.W. 159, 28 Tex. Civ. App. 23; Tel. Co. v. Armstrong (Tex.Civ.App.) 207 S.W. 592; Tel. Co. v. Goodson (Tex.Civ.App.)217 S.W. 183. The amount of $100 is deemed reasonable in the circumstances. The judgment is accordingly modified so as to allow a recovery of $100, and as modified is in all things affirmed, the appellee to pay costs of the appeal.

Appellee has filed cross-assignment of error in refusal to allow damages for failure to be with her daughters. No appeal was taken. Even so, the court committed no error in the ruling. The company had no notice in that respect.

Modified and affirmed.