Western Union Tel. Co. v. Estrada

236 S.W.2d 846, 1951 Tex. App. LEXIS 2446
CourtCourt of Appeals of Texas
DecidedJanuary 24, 1951
DocketNo. 12203
StatusPublished

This text of 236 S.W.2d 846 (Western Union Tel. Co. v. Estrada) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Western Union Tel. Co. v. Estrada, 236 S.W.2d 846, 1951 Tex. App. LEXIS 2446 (Tex. Ct. App. 1951).

Opinion

NORVELL, Justice.

This is an appeal from a judgment rendered in favor of Linde Estrada and her husband, Paul Estrada, and against the Western Union Telegraph Company.

On September 12, 1949, Paul Estrada delivered the sum of $10, plus toll charges', to the Western Union office at Greenville, Texas, for the purpose of having the $10 transmitted to his wife, Linde Estrada, at La Pryor, Texas. Through an inadvertence in the Greenville office, the order of transmittal was placed in an improper file and never sent to La Pryor. Paul Estrada was a migratory farm laborer and during the month of September, 1949, he was picking cotton in the vicinity of Greenville, Texas. His wife, Linde Estrada, was about twenty years of age and the mother of three small children.

Upon three occasions, that is, on the 9th, 12th and 23rd days of September, 1949, Paul Estrada deposited $10 with the Greenville office of the Western Union for transmission to his wife in La Pryor. The Western Union had no regular office at La Pryor and in transmitting money to any one living in said town, the practice was to send the same to a San Antonio bank, which would in turn remit to the La Pryor bank. The La Pryor bank would then notify the person entitled to receive the money to call at the bank for the same. This notification was generally made by postal card. Under the terms of the contract printed upon the application for the transmittal of money it was specified that all money sent to towns where no regular office was maintained would be sent to some bank as the agent of the one receiving the money and not the agent of the telegraph company.

It appears that on September 15th Linde Estrada received the money sent by her husband on the 9th, and that on the 30th she received the money delivered by her husband to the Greenville telegraph office on the 23rd. As above stated, the money delivered to the Greenville office on the 12th was never transmitted to La Pryor.

Linde Estrada was enceinte at the time the sums of money were delivered to the telegraph company by her husband for transmission to her and she suffered a miscarriage on October 25, 1949. It was ap-pellees’ theory that this miscarriage and consequent illness and disability was caused by the failure of the telegraph company to transmit the $10 given to it for that purpose by Paul Estrada on September 12, 1949.

The case was submitted to a jury upon special issues. Upon the question of notice, the jury resolved a sharp conflict in the testimony in favor of appellees by finding that the agent of the telegraph company in Greenville was notified by Paul Estrada on September 12th, that his wife, Linde Estrada was sick and in need of money and medical attention. The trial court restricted the elements of damages to (a) physical pain and suffering of Linde Estrada from September 12, 1949, to date of trial, (b) the reasonable value of Linde Estrada’s lost or diminished capacity to perform her duties as a mother and wife from September 12, 1949, to date of trial, and (c) the reasonable value of necessary doctor and medical bills incurred from September 12, 1949, to date of trial. The members of the jury were instructed that they should “not consider, nor allow, any amount for Linde Estrada’s physical and mental pain and suffering, nor for her diminished capacity to perform her household duties, nor for doctor’s, hospital and medicine bills because of Linde Estrada’s miscarriage and ensuing illness to the extent that the same were not aggravated or prolonged by the telegraph company's failure to transmit the ten dollars deposited with it on September 12, 1949.” The jury found damages in the sum of $1,040.60 had proximately resulted from appellant’s negligence in failing to transmit the money delivered to it on September 12, 1949. It is a reasonable inference that $40.60 of this amount represented doctor and medical bills and that $1,000 was allowed for pain and suffering and diminished capacity.

At the request of appellant, the court submitted a number of defensive issues, all of which were answered unfavorably to appellant. The jury refused to find that Linde Estrada was negligent in failing to go or send to the La Pryor bank for the money sent to her (by her husband at Greenville on September 9th) until September 15, 1949, [848]*848The jury also refused to find that Linde Estrada was negligent in failing to secure the remittance of September 23rd until September 30, 1949. The jury likewise refused to find that the La Pryor bank (as agent of appellees) failed to promptly notify Linde Estrada of the receipt of the $10 sums sent to it as a.result of Paul Estrada’s deposits in Greenville on the 9th and 23rd days of September. The jury also refused to find that Linde Estrada could have by reasonable diligence procured medical attention before October 25, 1949.

By the first three of nine points, appellant contends that a peremptory instruction to find for the appellant should have been given to the jury for the reasons that, (a) the notice of special damages was insufficient (the $10 and toll charges paid were tendered into court) ; (b) the special damages allowed by the jury were too remote as a matter of law, and (c) there was no causal connection shown between the failure by the appellant to transmit the money and the injuries suffered by appellee Linde Estrada.

The fourth point asserts that the jury’s finding on the question of causation was against the overwhelming preponderance of the evidence.

By its fifth, sixth, seventh and eighth points, it is asserted that appellees are precluded from recovering because of their own contributory negligence.

By its ninth point appellant contends that the jury’s award of damages was excessive.

Paul Estrada testified that on the 12th of September he went to the Western Union office at Greenville and told the company’s agent that he had received a letter from his wife stating that she was sick and needed money to see a doctor. He said that he wanted to send his wife $10 and delivered that sum, plus eighty-three cents for toll charges, to the company’s agent for the purpose of having the money sent to- his wife. Estrada also testified that the company’s agent told him that the money would be sent to La Pryor as quickly as possible. As above pointed out, the jury found in accordance with Estrada’s testimony, although it was contradicted by appellant’s agent.

Insofar as notice is concerned, the point of appellant’s objection seems to be that as Estrada did not tell the agent that his wife was enceinte, special damages because of her pain and suffering, diminished capacity, etc., attributable to the wife’s condition can not be recovered.

It appears, however, that the telegraph company had notice that the wife of the person depositing the money for transmittal was ill and needed a doctor. The fastest practicable means of getting the money to the sick wife was employed. In accordance with an abundance of authority in Texas, it must be held that such notice was sufficient to charge the telegraph company with notice of special damages. In the comparatively recent case of Western Union Telegraph Co. v. Shaw, 1944, 142 Tex. 243, 177 S.W.2d 52, 54, the Supreme Court said:

“It is the settled law of this State that when a telegraphic communication relates to sickness or death there accompanies it a common-sense suggestion that it is of importance, and that the person addressed has in it a serious interest. Western Union Tel. Co. v. Adams, 75 Tex. 531, 12 S.W.

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Related

Western Union Telegraph Co. v. Shaw
177 S.W.2d 52 (Texas Supreme Court, 1944)
Western Union Telegraph Co. v. Burris
147 S.W. 1173 (Court of Appeals of Texas, 1912)
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160 S.W. 107 (Court of Appeals of Texas, 1913)
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158 S.W. 1187 (Court of Appeals of Texas, 1913)
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26 S.W. 490 (Texas Supreme Court, 1894)
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168 S.W. 878 (Court of Appeals of Texas, 1914)
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226 S.W. 671 (Texas Supreme Court, 1920)
Western Union Telegraph Co. v. Mooney
160 S.W. 318 (Court of Appeals of Texas, 1913)
Western Union Telegraph Co. v. True
148 S.W. 561 (Texas Supreme Court, 1912)
Western Union Telegraph Co. v. Gold
235 S.W. 331 (Court of Appeals of Texas, 1921)
Western Union Telegraph Co. v. Odom
52 S.W. 632 (Court of Appeals of Texas, 1899)
Western Union Telegraph Co. v. Goodwin
173 S.W. 1164 (Court of Appeals of Texas, 1914)
Westers Union Telegraph Co. v. Cooper
1 L.R.A. 728 (Texas Supreme Court, 1888)
Western Union Telegraph Co. v. Simpson
11 S.W. 385 (Texas Supreme Court, 1889)
Western Union Telegraph Co. v. Adams
6 L.R.A. 844 (Court of Appeals of Texas, 1889)
Western Union Telegraph Co. v. Hicks
47 S.W.2d 466 (Court of Appeals of Texas, 1932)

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Bluebook (online)
236 S.W.2d 846, 1951 Tex. App. LEXIS 2446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-union-tel-co-v-estrada-texapp-1951.