
    WESTERN UNION TELEGRAPH CO. v. BROOKS.
    (No. 3522.)
    (Supreme Court of Texas.
    Jan. 20, 1926.)
    1. Telegraphs and telephones &wkey;>68(2) — Damages for mental suffering recoverable in proper case, regardless of physical injury or pecuniary loss.
    In a proper case, recovery may be bad against telegraph company for mental suffering as an element of actual damages, regardless of whether physical injury or pecuniary loss was sustained.
    2. Telegraphs and telephones &wkey;>67(2) — Telegraph company, having notice of sender’s interest, liable for damages for negligence.
    Where notice of sender’s interest in message is brought to telegraph company,. and it negligently breaches its contract, it is liable to sender for such damage as was reasonably within contemplation of parties.
    3. Telegraphs and telephones <&wkey;68(l)— Damages held recoverable by mother for mental anguish suffered by failure to transmit money to son.
    Where mother informed telegraph company that she was sending money to her son, who was destitute and mentally unbalanced, to enable him to return home, and the company failed to transmit money, held that mother was entitled to recover for mental anguish suffered by reason of the'son’s failure to return home as expected if money had been sent.
    Error to Court- of Civil Appeals of Fifth Supreme Judicial District.
    Action by Mrs. N. O. Brooks against the Western Union Telegraph Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (221 S. W. 1022), and defendant brings error.
    Affirmed.
    Flippen & Miller, of Dallas, and Francis R. Stark, of New York City, for plaintiff in error.
    B. Q. • Evans, of Greenville, and Chas. L. Black, of Austin, for defendant in error.
   PIERSON, J.

This is a suit in which defendant in error, Mrs. N. O. Brooks, seeks to recover damages from plaintiff in error for its negligent failure to transmit and deliver to her son, Richard T. Brooks, who was then at Bastrop, Tex., the sum of $15 (plus the cost of a telegram) according to contract, which sum was delivered to plaintiff in error’s agent at Paris, Tex.

In January, 1917, Richard T. Brooks, son of defendant in error, Mrs. N. O. Brooks, was adjudged insane and confined in the San Antonio State Hospital. In August he escaped, and at Bastrop was apprehended and detained by the sheriff of Bastrop county.

Mrs. Brooks, who was then about 14 miles from Paris, Tex., was notified of his escape by the hospital authorities, and that they could not receive him back because the law under which he had been convicted had been declared unconstitutional; also the sheriff of Bastrop county wrote her of her son’s condition, and that he had no authority to hold him longer, and asked her to send him $10 to come home on; also she received a letter from her son saying he was in jail, sick, without funds, and without sufficient clothing, and asking her for help.

Immediately, on August 14th, she went to Paris, to plaintiff in error’s office, and sent a message to the sheriff to ascertain if her son was still there. Upon getting an affirmative reply, she contracted and arranged with plaintiff in error to transmit the sum of money mentioned above. This plaintiff in error failed to do and negligently breached the contract.

Defendant in error, after meeting the trains for three or four days, expecting to receive her son, returned to her place in the country, and, on the 19th of August received a card from her son, dated the 17th, saying he had not received any money, that he was sick, without clothes, in a critical condition, among strangers, and was leaving for somewhere, he did not know where.

The honorable Court of Civil Appeals for the Fifth Supreme Judicial District affirmed a judgment for damages for mental anguish suffered by Mrs. Brooks on account of said breach in the sum of $800.

AS defenses to Mrs. Brooks’ cause of action, plaintiff in error asserts that a telegraph company, for delay in delivering money sent by telegraph, is not liable for fear, grief, or other mental anguish of the sender; that, if defendant in error so suffered her suffering was caused alone by her excited imagination and the creations of her mind, and had no foundation in fact; that such mental anguish and consequent suffering and damages to defendant in error-“were not within the contemplation of the parties at the time the contract for the transmission and delivery of the money order was made';” that the matters com- • plained of “were too remote and could not have been anticipated by the parties when the .money order was sent;” that defendant in error’s son voluntarily left Bastrop, and therefore, if she suffered anxiety about him, it was due to his negligence in so leaving, and in doing so he put it beyond the power of plaintiff in error thereafter to deliver the money, and the defendant in error’s damages were directly attributable to the acts of her son, for which plaintiff in error would not be responsible; and that the suffering of defendant in error was mere prolonged or increased mental anguish already existing, for which no recovery may be had.

None of these defenses are tenable. While in the early development of the law, in this and some other jurisdictions, regarding the right to recover for mental suffering in cases like this, there was some confusion and contradiction, the principles which support defendant in error’s right to recover are now fairly well settled in this state. Recovery may be had for mental suffering, as an element of actual damage, in a proper case, regardless of whether physical injury or pecuniary loss was sustained. SoRelle v. Western U. Tel. Co., 55 Tex. 308, 40 Am. Rep. 805; Stuart v. W. U. Tel. Co., 66 Tex. 580, on rehearing page 586, 18 S. W. 351, 353, 59 Am. Rep. 623, 629; W. U. Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385; W. U. Tel. Co. v. Olivarri, 104 Tex. 203, 135 S. W. 1158; Horn v. W. U. Tel. Co., 109 Tex. 229, 194 S. W. 386, 205 S. W. 831; W. U. Tel. Co. v. Johnson, 111 Tex. 1, 226 S. W. 671; 37 Cyc. 1776, 1777; 1 L. R. A. Digest, 973, 974.

The principle that must be applied in this class of cases is that, if notice of the sender’s interest in the message is brought to the telegraph company, and it negligently breaches its contract, it will be held liable to the sender for such damage as was reasonably within the contemplation of the parties. W. U. Tel. Co. v. Johnson, 111 Tex. 1, 226 S. W. 671; W. U. Tel. Co. v. Olivarri, 104 Tex. 203, 135 S. W. 1158; Horn v. W. U. Tel. Co., 109 Tex. 229, 194 S. W. 386, 205 S. W. 831.

The rule suggested in W. U. Tel. Co. v. Johnson, 111 Tex. 1, 226 S. W. 671, that the interest of the smder of a message must fairly appear from the message itself, or be disclosed by other information, before the telegraph company will be affected by it, is fully met in the facts of this case.

The facts are unusual, and must have attracted the attention of plaintiff in error’s agent at Paris to her and her state of mind quite as much, if not more, than to the son, the addressee. She disclosed to him that she was anxious about the son because he was mentally unbalanced and hot able to take care of himself, was at the jail at Bastrop, and would be adrift, and she wanted to get him home so1 she could look after him.

Defendant in error’s uneontradicted testimony was:

“I told them the boy’s condition, and why I was so anxious to telegraph the money to him; that he was not capable of taking care of himself, and had just escaped from the asylum, and I wanted to get him home so that X could watch over him, and I handed them the check for $34 and something. I said for them to first wire the sheriff to know if he was still there, and I told them that if he was still there, as quick as they got the word that he was there to send him $15 at once to come home. I told them that the sheriff had asked me to send him $10, but I would send $15 for fear that he needed some other things. Then I stepped out of the office to see about my little girl, and when I went back X asked if they had heard from the telegram, and they told me that my money had gone to him and he would get it about 5 o’clock they guessed. X asked them what time I should meet the train that he would come to Paris on, and they told me about what time he should be in Paris. Then I met all the trains until Monday; Monday late was the last train I met. The 14th, the day I sent the money, was on a Friday, and I met the trains on Saturday and Saturday night, and Sundajr and Sunday night, and Monday. There was one train came in about noon. I met that, and I believe I went back to the farm on Monday evening, and on Wednesday I received a card from the boy that he had written on Monday, stating that I had failed to send him the money and he was leaving for somewhere, he did not know where; that he was in a drought stricken country, and there was no work for him to do, and he was sick and without clothes and in a critical condition. * * * When I realized that the money had not reached him, I could not eat and could not sleep. I was affected greatly on account of it. I did not know what had happened to the boy; he was not capable of taking care of himself. * * * I was affected that way for three weeks.”

The requirements of the law that plaintiff in error must have known the relationship of the parties, the personal interest of the sender in sending the money, and have had in contemplation the results that followed if it breached the contract, are met in this case. W. U. Tel. Co. v. Johnson, 111 Tex. 1, 226 S. W. 671; W. U. Tel. Co. v. Olivarri, 104 Tex. 203, 135 S. W. 1158; Horn v. W. U. Tel. Co., 109 Tex. 229, 194 S. W. 386, 205 S. W. 831.

Plaintiff in error should have foreseen that such injury as experienced by Mrs. Brooks would result to her if it breached its contract with her. It would do violence to reason and common sense to say, under the unusual facts of this case, the heart of which was the unfortunate mental and bkysieal condition and financial distress of the son, which were fully disclosed to the company’s agent, that the company and the sender did not have in contemplation that just such anxiety and suffering would befall the sender as a proximate result of the breach of the contract in the light of the attending circumstances. The facts were all before plaintiff in error’s agent. Mrs. Brooks informed him of her desire to have her son at home where she could look after him, and that for that purpose she was sending the money.

We think the suffering and anxiety of Mrs. Brooks cannot be held to be unreal and too remote because perchance her son, during two or three weeks of his pilgrimage home, had nothing seriously harmful happen to him, and that he did not undergo any unusual suffering. It was to hedge against the dangers to him incident to his weakened mental and physical condition that the mother delivered the money to plaintiff in error, and which it, with full knowledge of the facts and conditions, undertook and contracted to transmit and deliver. It must be held that the parties had in contemplation just such anxiety and suffering on the part of defendant in error as testified to by her in case the telegraph company should breach its contract.

Plaintiff in error insists that defendant in error cannot recover in this case because her suffering was merely prolonged or increased by its negligent default, and refers us to Rowell v. W. U. Tel. Co., 75 Tex. 26, 12 S.W. 534, and W. U. Tel. Co. v. Edmondson, 91 Tex. 206, 42 S. W 549. Whether or not a recovery may be had for merely prolonged suffering or for increased and aggravated suffering in mental anguish cases need not be reviewed here.

Plaintiff in error’s negligent breach of its contract produced upon defendant in error a distinct and separate injury and suffering which was the proximate result of its negligence.

The judgment should be affirmed, and it is so ordered. 
      <g=^For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     