
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. GEHRING.
    
    (Court of Civil Appeals of Texas. Galveston.
    April 22, 1911.
    Rehearing Denied May 11, 1911.)
    1. Telegraphs and Telephones (§ 51) — Delay in Telephone Connection — Contributory Negligence.
    Where plaintiff was informed over the long distance telephone that her father had been struck by a street car, but was not seriously injured, and that, if the doctors later found his condition serious, she would be informed, it was not contributory negligence on her part to fail to start at once to her father’s bedside, so as to preclude recovery for mental suffering due to the fact that connection was negligently denied at a later hour when it was attempted to tell her that her father was fatally hurt, by which she was prevented from reaching him while still alive.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 35; Dee. Dig. § 51.]
    2. Tbial (§ 260) — Instructions Aleeady Given.
    Requested instructions, already covered by those given, are properly refused.
    [Ed. Note. — Eor other cases, see Trial, Gent. Dig. § 651; Dec. Dig. § 260.]
    3. New Teial (§ 162) — Denial Conditioned on Remission of Paet op Recovery.
    Under Rev. St. 1895, art. 1029a, authorizing the Court of Civil Appeals to require the remission of so much of a recovery as it deems excessive as a condition of refusing to reverse, a similar action of the trial court as a condition of denying a new trial is not error.
    [Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.]
    4. Telegraphs and Telephones (§ 56) — Eailuke to Give Telephone Connection —Agency op Person Calling fob Person Called.
    Where J. requested a long-distance telephone connection, stating that it was for plaintiff’s benefit, and to notify her of the dangerous state of her father so that she could come at once, J. was the agent of the plaintiff in so doing, and the facts established a contract relation between plaintiff and the telephone company, entitling her to sue for the negligent failure to give the connection whereby plaintiff was unable to reach her father before he died.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.]
    5. Telegraphs and Telephones (§ 71) — Failure to Deliver Message — Amount op Recovery — Mental Anguish.
    In an action against a telephone company for a negligent failure to give a long-distance connection, whereby plaintiff was deprived of being with her injured father for three hours before he died, during all of which time he was unconscious, a verdict of $1,500 for mental anguish, reduced by the trial court to $1,000, was not so excessive as to require a further reduction at the hands of the appellate court.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dee. Dig. § 71.]
    Reese, J., dissenting in part.
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Elsie Gehring against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. P. Wozeneraft, W. S. Bramlett, D. A. Frank, and Harris & Harris, for appellant. Hogg, Gill & Jones and J. 0. Townes, for ap-pellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
      
    
    
      
       Writ of error denied by Supreme Court.
    
   REESE, J.

This is a suit by Elsie Gehring against the Southwestern Telegraph & Telephone Company to recover damages laid at $1,950 for mental suffering occasioned by her failure to be present at the bedside of her father, G. C. Gehring, before his death. It is alleged that this result was proximately caused by the negligence of defendant, through which a telephone message to plaintiff at La Porte apprising her of the approaching death of her father failed to reach her. Upon trial with a jury, a verdict was returned in favor of plaintiff for $1,500. Deeming this amount excessive, the court stated that, unless a re-mittitur of $500 was filed, a new trial would be granted. Upon the filing of such remit-titur, the motion for' a new trial was overruled, and judgment entered for $1,000, from which defendant appeals.

There is very little controversy about the facts, which are as follows: On the evening of August 10, 1908, C. C. Gehring, father of appellee, was struck and injured by a street car in Galveston. He was removed to the hospital, where he lay until about 11 o’clock a. m. August 11th, when he died. Appellee was at the time living in La Porte at the home of D. D. Peden, her brother-in-law. Shortly after the accident she received through Mr. Griffith a telephone message informing her of the accident, but conveying the further information that Mr. Gehring was not seriously injured, and, if it was discovered after examination by the doctors that his condition was serious, he would let ap-pellee know so that she could come to Galveston. Later, about 9:20 o’clock p. m., Mr. Jenkins, another brother-in-law, made an effort to reach appellee through D. D. Peden by telephone over the lines of appellant, the substance of the message being such as to inform appellee of her father’s dangerous condition and the likelihood of his death, and to call her at once to Galveston. The operator of appellant at Galveston was informed of the cause, and the urgency of the message, and that it was for the benefit of ap-pellee, who was the daughter of Mr. Gehring, and that the purpose of the call was to have appellee to come to her father at once. Repeated attempts to reach the La Porte office failed that night and until about six o’clock the next morning, when Mr. Jenkins was able to reach Mr. Peden and talk to him over appellant’s lines. It is not disputed, • and is shown by the evidence, that the failure to reach appellee in response to the call put in about 9:20 o’clock on the night of August 10th was due to the negligence of the operator at La Porte. If this call had been attended to with reasonable promptness, ap-pellee could and would have reached her father about 8 o’clock a. m. on August 11th, about three hours before he died. She came to Galveston at the earliest moment after receiving the message on the morning of the 11th, going by way of Houston, and reached the infirmary about 11 o’clock, after her father’s death, and as his body was being carried out of the building. As a proximate result of the negligence of appellant, ap-pellee was deprived of the opportunity of being with her father from about 8 o’clock a. m. until 11 o’clock a. m., about three hours, during which time he was alive, but during all of which time Mr. Gehring was unconscious, and not able to recognize or communicate with any one. Appellee was his youngest child, and they were much devoted to each other. Appellee testified that she suffered great mental anguish on account of not having been able to be with her father before his death, and the evidence authorized the conclusion that this is true.

By the first assignment of error appellant complains of the refusal of the trial court to give a charge requested by it, presenting, as a defense to the action, the issue of contributory negligence of appellee in not going immediately to her father on receipt of the first telephone message from Griffith. The message was not of such a nature as to cause serious alarm to appellee, and we are inclined to think that the evidence on this point did not present the issue of contributory negligence as suggested by the charge, and it would not have been error to have refused the charge, if the issue had not been presented at all.

But the court did instruct the jury properly upon this point, and there was for this reason, if no other, no error in refusing the requested charge. There is no merit in the assignment.

The charge requested by appellant, the refusal to give which is made the ground of the second assignment of error, with regard to the time at which appellee could have reached Galveston had the message of Jenkins been promptly transmitted, ignores the fact that, although there were no trains through La Porte that would have enabled her to reach Galveston sooner than she did, appellee could, and the testimony shows that she would, have caught an earlier train from Houston to Galveston by driving a few miles across the country to Genoa or Harrisburg. The law upon this issue was fully and clearly presented to the jury by the charge of the court, and there was no error in refusing the requested instruction.

There is no merit in the fourth assignment of error. It seems to be settled by the authorities that since the enactment of Article 1029a, R. S. 1895, the action of the trial court in a case like this, in requiring a remittitur of the amount of damages awarded by the verdict, otherwise a new trial for excess will be granted, for which remittitur is then voluntarily entered, does not present ground for reversal of the judgment in the appellate court. Article 1029a, R. S. 1895; Railway Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622; Railway Co. v. Jackson, 61 S. W. 440; Railway Co. v. Linthicum, 33 Tex. Civ. App. 375, 77 S. W. 40; Railway Co. v. Rhodes, 35 Tex. Civ. App. 432, 80 S. W. 869. The cases cited by appellant in support of the fourth assignment were all decided before the enactment of the above article of the statute.

There is no merit in the fifth assignment of error. The evidence tended clearly to show that, when Jenkins put in the call for Peden, the agent at Galveston was informed that it was intended also for the benefit of appellee, and it was not error for the court to charge that if this was true Jenkins was the agent of appellee in the matter, and that such facts established a contractual relationship between appellant and • appellee. There was sufficient evidence to show that the agent at Galveston was informed that the purpose of the call was to bring appellee to Galveston at once on account of the serious condition of her father, and the charge of the court clearly presented this issue to the jury.

The sixth and seventh assignments present no merit, and we overrule them without discussion.

By the third assignment of error, appellant complains of the refusal to grant it a new trial on the ground that the verdict and judgment are excessive. The verdict was for $1,500. The trial court required a remittitur of $500, stating that the amount of the verdict was excessive, and that, if remittitur was not entered, a new trial could be granted. The remittitur being entered, the motion for new trial was overruled and judgment entered for $1,000. The evidence fully justifies the conclusion that by reason of the negligence of appellant’s agent at La Porte, which was, with commendable candor, conceded by the learned counsel for appellant in his oral argument upon the submission, appellee was deprived of the opportunity of being present at the bedside of her father when he died, and of being with him for about three hours before he died, during all of which time he was, according to the undisputed evidence, unconscious and unable to recognize or communicate with any one. The appellee suffered mental anguish on this account, as is perfectly natural, as the most affectionate relations existed between father and daughter, and to this natural conclusion is added her emphatic testimony on this point, and the testimony of others as to her exhibition of grief. How much of this grief was occasioned by her father’s death for which appellant was not responsible, and how much by her failure to reach him before he died, of course it is impossible to say, but, taking the whole evidence, the majority of the court conclude that this court has no measure by which it can estimate the money value of the mental anguish suffered by appellee for this latter cause, and that this court would not be justified in substituting its judgment as to the proper amount to be awarded for that of the jury and of the trial court in requiring the remittitur of $500, and that, therefore, the assignment should be overruled without requiring further remittitur. To this the writer is not able to agree. The trial court has already by its action said, in effect, that the jury in arriving at the amount of their verdict was actuated by passion or sympathy, or other improper motive, so as to require the interference of the court, as to the amount of the verdict. The trial court has then considered it proper to substitute its judgment for that of the jury as to the amount of the verdict, and we feel sure that, if there had been no remittitur required in the trial court, this court would upon proper assignment of error have refused to allow the judgment to stand for $1,500, and this action would have required the substitution of the judgment of this court for that of the Jury. The statute cited clearly authorized this, and equally clearly recognizes the duty of this court to do so, in certain cases, and the necessity of such action to prevent palpable injustice. It is quite true that there is no fixed standard • by which mental anguish can be measured, and it seems difficult to see how a money value can be placed upon it. But parties do place a money value upon it, for which they sue to be compensated in money, and since they do, I cannot bring myself to say that the duty does not rest upon the courts to restrain the ever ready sympathy of juries from finding expression in verdicts which appear to be so unreasonably large that they cannot be reasonably accounted for on any other hypothesis. This has been done in this case by the trial court, and we no longer have the verdict of the jury. There is no uniformity, in the decisions from which any 'guide can be afforded the court in acting upon a question of this kind, and there is little use in consulting authorities. In the case of W. U. Tel. Co. v. Bouchell, 28 Tex. Civ. App. 23, 67 S. W. 159, a case strikingly similar to the present case, a verdict for $1,250 damages for mental anguish was reduced by the Court of Civil Appeals of the Pt. Worth district to $500. In that case, as in this, a daughter was deprived of the opportunity of reaching the bedside of her father and being with him for 3y2 hours before his death, during all of which time he was as in the present, case unconscious. But, without being controlled to any extent by that case, I think that the judgment for $1,000 is unreasonably large, in fact grossly excessive, and that having departed from the standard set by the jury, and substituted therefor the judgment of the court, the judgment should not he allowed to stand for more than $500, to which extent a remittitur should be required.

In accordance with the opinion of the majority of the court, the judgment is affirmed, the writer deeming it proper to enter his dissent only as to the amount.

Affirmed. Justice REESE dissenting as to the amount  