Western Union Telegraph Co. v. Stiles

34 S.W. 438, 89 Tex. 312, 1896 Tex. LEXIS 359

• Court: Texas Supreme Court
• Decided: March 3, 1896
• Docket: No. 389.
• Status: Published

Opinion

BROWN, Associate Justice.

The following statement and question have been certified to this court by the Court of Civil Appeals of the First Supreme Judicial District:

“In this case plaintiff sues to recover damages for grief suffered by her in consequence of the negligent failure of defendant to deliver in proper time a telegram from her sick brother, notifying her of his serious-sickness and requesting her to go to him, on account of which default on defendant’s part, plaintiff was deprived of the opportunity of getting to her brother before his death.

“The dispatch was sent several days before the brother’s death and should have been delivered on the day when it was sent, but was not in-fact delivered until after his death.

“In order to show the extent of her grief resulting from these facts, plaintiff alleged and proved that after sufficient time had elapsed for the delivery of the telegram and for her to have reached him, her brother expressed strong desire to see her, and disappointment at her failure to-come, and also spoke bitterly of her, remarking that she considered herself above him and was too rich and proud to care for him, and that he died with that belief. All of this was communicated to plaintiff on her arrival between his death and burial, and aggravated and intensified the-grief which she suffered.

Were these facts admissible and could plaintiff, if otherwise entitled to recover, hold defendant liable for the increased grief occasioned by them?”

The testimony set out in the statement above copied was not admissible, because it did not tend to prove the state of the plaintiff’s feelings towards her brother, nor did it tend to prove any result of the failure-to deliver the message for which the Telegraph Company was liable.. The Telegraph Company could not be expected to anticipate that upon the failure of the plaintiff to respond to the message sent by her brother-summoning her to his bed-side, the brother, in the presence of death,, ■would become embittered against her and attribute it to her pride and want of affection for him.

The evidence in question, taken as a whole, tends more to prove (so-far as the deceased was concerned) that there had existed on his part gome unkind feeling towards his sister, than it does to prove any affectionate regard for her, and therefore it did not in any way tend to establish, what was no doubt true, that the sister was affectionate towards her brother.

The recital of the statements of the dying man, made by others to the-plaintiff after her arrival, naturally aggravated the grief which would have occurred to a kind and loving sister under ordinary circumstances;: the admission of such testimony would awaken in the jury a sympathy for the distressed sister, and, although it might be unconsciously done,. would induce them to. increase the amount of damages. If the evidence is not to influence the verdict, why should it he admitted at all? A juror has the right and it is his duty to consider all evidence admitted by the court. But the Telegraph Company cannot be held liable for all damages which may arise from a failure to comply with its contract, no matter how great or real such damage may be; it can only be held for such as it should have anticipated, from the knowledge that it had and that which the law imputes to it, as the probable result of a failure to deliver the message. (Tel. Co. v. Carter, 85 Texas, 580.)

The case of Tel. Co. v. Lydon, 82 Texas, 364, is urged as supporting the ruling of the district court in admitting this testimony. An examination of that ease will show that the question was not before the court, the evidence not having been objected to, and what the learned judge who delivered the opinion said was unnecessary to the decision of the case. In the opinion, he said: 7iWhile juries, in the absence of any evidence on the subject, may act upon their own knowledge of the affection subsisting between a mother and her son, still the admission of evidence upon the subject may be proper, and we cannot say that proof of a special regard felt and shown by a mother for one of her children may not be properly considered by the jury, in connection with other circumstances, in estimating the feeling of the child toward the parent.” The opinion expressed by Judge Henry in this opinion is based distinctly upon the proposition that the proof offered, together with other circumstances, might be considered as tending to show the condition of the feelings of the child towards the mother. But no one could claim that the evidence admitted in this case would tend to prove any such thing on the part of the plaintiff, for it distinctly imputes to her an unworthy and unnatural condition of mind towards the deceased, and is inconsistent with the idea that the brother regarded her as affectionate towards him. If Telegraph Company v. Lydon be regarded as correctly stating the law it does not authorize the admission of this evidence. A really loving sister would be greatly grieved to know of such a state of feeling on the part of her brother at such a time; the more unjust the imputation the greater would be her mental suffering. In charity to the deceased it would be presumed that his unkind feelings and harsh expression were the result of a morbid sensitiveness, which could not be expected to arise under the circumstances.

We answer that the testimony should not have been admitted and that the Telegraph Company cannot be held liable for the increased grief occasioned by the relation to her of the statements made by her dying brother.