
    HORN v. WESTERN UNION TELEGRAPH CO.
    (No. 2475.)
    (Supreme Court of Texas.
    April 25, 1917.)
    1. Telegraphs and Telephones <&wkey;66(4)— Failure ro Deliver Message — Evidence— Sufficiency.
    In an action for damages for failure to promptly deliver a telegram’, evidence held to show that the person who received the message although not an employé of the defendant had limited authority to represent the defendant in receiving the message and accepting the payment therefor and to accept as notice to the defendant the statement of the person delivering the message as to the purpose of sending it.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63.]-
    
      2. Telegraphs and Telephones &wkey;>38(6)— Delivery oe Message — Notice of Relationship.
    AVhere a telegraph message related to death, notice of relationship could be conveyed by an oral statement to the agent of the telegraph company as effectively as if imparted by the terms of the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33.]
    3. Telegraphs and Telephones <&wkey;6§(5)— Failure to Deliver Message — Mental An g uisi r — N otice.
    AATliero the agent of the telegraph company ■was told that tlie message, telling of the death of a baby, vas sent in behalf of its mother to her sister, and that the, mother wanted the sister to be present at the burial of the child, it was sufficient notice to the telegraph company that the mother would probably suffer mental distress from a failure of the sister to attend the burial.
    [Ed. Note. — For other cases, see' Telegraphs and Telephones, Cent. Dig. § 70.]
    ■4. Telegraphs and Telephones <&wkey;68(5)— Failure to Deliver Message — Damages— Mental Anguish.
    Recovery may be had for the negligence of a telegraph company in the delivery of a message, telling of the death of a baby to the sister of its mother, which was the proximate cause of mental anguish on the part of the mother from the failure of the sister to attend the child’s funeral, where the telegraph company had notice that such injury to her feelings might result from negligent breach of the contract to deliver the message promptly.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 70.]
    5. Telegraphs and Telephones <&wkey;68(4)— Failure to Deliver Message — Mental Anguish — Evidence.
    Where through the negligence of a telegraph company in the delivery of a message telling of the death of a baby to the sister of its mother the sister was unable to attend the baby’s funeral, the fact alone of blood relationship between the sisters would justify the inference that injury to the mother’s feelings resulted.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 70.]
    G. Trial <&wkey;2S3(3) — Instructions—Ignoring Issues — Failure to Deliver Message.
    In an action for negligence in delivery of a telegraph message presented in the evening at an office which closed at night and did not open until 8 o’clock, an instruction, allowing recovery if the agent agreed to transmit the message by 6:30 or 7 the next morning and failed to do so, was erroneous, since the telegraph company was entitled to have the jury pass upon the reasonableness of the office hours so established as a complete defense to the charge of negligence in not sending the message before 8 o’clock, and the agent had no authority to change the regulation if it had been established and was reasonable.
    ’ [Ed. Note. — For other cases, see 011131, Cent. Dig. § 6X6.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by A. R. Horn against the Western Union Telegraph Company. From a judgment of the Court of Civil Appeals (149 S. W. 557), reversing and remanding a judgment of the District Court for the plaintiff, plaintiff brings error.
    Judgment, reversing and remanding, affirmed.
    R. D. Allen, of Sulphur Springs, for plaintiff in error. N. D. Lindsley, of Dallas, and Geo. H. Fearons, of New York City, for defendant in error.
   YANTIS, J.

The plaintiff in error, A. R. Horn, recovered a judgment against the dej fendant in error, the Western Union Telegraph Company, for the alleged failure to promptly deliver the following telegram:

“Mount Vernon, Texas, May 16, 1910.
“Sam Smith, 1311 Grove Street, N. Fort Worth, Texas. Bill Horn baby died last night, ten thirty. Come at once. J. W. Condrey.”

It was alleged that Mrs. Sam Smith, the wife of the addressee of the telegram, was the sister of Mrs. A. R. (Bill) Horn, and that the message was sent by Condrey at the request of A. R. Horn, for the benefit of his said wife, because she desired her sister’s presence with her at the funeral of her baby, and that Mrs. Horn suffered mental distress as a result of the failure of Mrs. Smith to lend her presence at the funeral, which failure to so attend was caused by the negligent failure of the defendant to promptly transmit and deliver said message. The trial was had in the district court of Hopkins county. From a verdict in favor of the plaintiff in error the defendant in error prosecuted an appeal to the Court of Civil Appeals for the Sixth District at Texarkana. That court reversed and remanded the cause. 149 S. W. 557. A writ of error was granted by this court on the petition of plaintiff in error.

We are of opinion that the Court of Civil Appeals erred in holding that there was no evidence to show that John Knowles, who received the telegram for transmission from J. W. Condrey, was the agent of the Western Union Telegraph Company. We think there is evidence tending to show that John Knowles, though not an employé of the defendant in error, had authority to represent the Western Union Telegraph Company in receiving the message and in accepting the pay, as he did, in its behalf to render the service of promptly transmitting and delivering the message.

The evidence shows that a man named Black was the regular agent at Mt. Vernon, for the defendant in error; that he had very little work to do for them, few Western Union messages being sent from Mt. Vernon; that he was also an agent of the St. Bouis Southwestern Railway Company at said place, and a portion of his time was employed in discharging his duties as such railway agent; that his office was in the railway depot; that two other railway agents, the day agent and the night agent, occupied the same office; that the railway company had a telegraph instrument in said office which it used exclusively in its own behalf in transmitting and receiving messages directing the operations of its trains; that the telegraph company also had its own instrument for use in the sending and-receiving messages in the conduct of its own business ; that the two instruments were side by side, only a few inches apart; that there was some hind of a contract between the railway company and the telegraph company re-la ting, to the interchange of services by their respective employés; that the telegraph company hept a hook on which to hang the messages left with it for transmission; that it had been a custom for many years, in the absence of the telegraph company’s agent at night, for the railway agent to receive the messages for transmission by the telegraph agent when he should come upon duty for the telegraph company the following morning, when he would send them; it was also a custom for the railway agent himself occas-sionally to send such messages as an accommodation, as the one in question was sent by the day agent of the railway company, while the regular telegraph agent was temporarily absent from the office, perhaps engaged in work for the- railway company. Condrey, in behalf of Smith, when he delivered the telegram to Knowles for transmission, explained its purpose to him, and paid him 25 cents, the regular charge made by the telegraph company for sending such a message. Knowles hung the message on the telegraph company’s hook, which was by it provided, and promised that the telegraph agent would send it the following morning, the message being received by him late at night. On the next day Knowles delivered the money which had been paid to him for the transmission of the tfelegram to Black, the agent of the. telegraph company.

We think these -circumstances constitute some evidence of probative force, to the effect that Knowles had the limited authority to receive, in behalf of the telegraph company, the message for transmission, and to accept as notice to the company the statement of Condrey as to the purpose of sending the message. We, therefore, are of the opinion that the Court of Civil Appeals erred in holding there was no evidence that Knowles was the agent of the telegraph company. The telegram upon its face does not convey to the telegraph company any notice that it was intended for the benefit of Mrs. Smith. If we look alone to the terms of the telegram, the defendant in error would not be liable for the lack of such notice. Telegraph Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869. But such notice may he given independent of the message as effectively as if imparted by the very terms of the message. Herring v. Telegraph Co., 185 S. W. 293; Id., 60 Tex. Civ. App. 5, 127 S. W. 882; Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896; Telegraph Co. v. Bell (Civ. App.) 90 S. W. 714; Telegraph Co. v. Hidalgo (Civ. App.) 99 S. W. 426; Telegraph Co. v. Russell (Civ. App.) 31 S. W. 698.

The evidence in this case tends to show that the telegraph company had notice from Condrey, the agent of Smith, in sending the telegram, that Mrs. Smith was the beneficiary of the telegram. Condrey testified that when he gave the,,message to Knowles, the company’s receiving agent, he told him;

“I want to be sure so Mrs. Smith will be sure to come on that train.” “I want that message to get to her in time for her to take that train, because Mrs. Horn wants her sister to be at the burial.” “I told this agent that Mr. Horn instructed me to tell hi* that Mrs. Smith was a sister of Horn’s wife, and that she wanted Mrs. Smith to be at the burial of his child.”

We think this is evidence tending to show that the telegram was being sent for the benefit of Mrs. Horn, from which it could be reasonably contemplated that Mrs. Horn would probably suffer mental distress from a failure of Mrs. Smith to attend the buriaL

We think the contention that Horn is not entitled to recover for his wife’s mental anguish which resulted to her on account of the absence of her sister at the burial is without merit, and should he overruled. If such mental anguish was proximately caused by the negligence of the defendant in error in failing to promptly deliver the message, we can see no good reason for denying a recovery, where the telegraph company had notice that such injury to her feelings might result from a negligent breach of the contract. Telegraph Co. v. Simmons (Civ. App.) 93 S. W. 688; Western Union Telegraph Co. v. Tom Tucker, 194 S. W. 130, decided by this court at its present term.

We think the Court of Civil Appeals erred in holding that there was no evidence of damage to Mrs. Horn in the failure of her sister to attend the funeral. It is true that the evidence of such damage is very briefly stated, but it is some evidence from which the jury could infer that some damage resulted. The only evidence that mental anguish resulted to Mrs. Horn from the absence of Mrs. Smith at the funeral was that they were sisters, and had been together all their lives until they were married, and that they were very dear to one another. But we think this is evidence of some probative force from which the jury would be privileged to infer that injury to Mrs. Horn’s feelings resulted. In Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896, this court, speaking through Mr. Justice Brown, said:

“From the fact of blood relationship, if it exists, a jury may, without other proof, infer that mental anguish was occasioned by the failure to be present at the bedside of the sick, or at the funeral of the deceased relative.”

We think this holding is sound, whether applied in favor of the sender who claims damage to himself for the failure .of a blood relative to attend him in time of sickness or death in his family, or applied in favor of the sendee'for failure to attend the sickness or death of a blood relative.

In section 5 of the main charge the court directed the jury that if they believed John Knowles “in receiving the message in controversy contracted and agreed with J. W. Condrey to transmit said message to Sam Smith by 6:30 or 7 o’clock on the 16th day of May, 1910, in time for the sister of plaintiff’s wife to arrive at the burial of the child of Bill Horn, as alleged in the plaintiff’s petition,” etc., to find in favor of the plaintiff. In • the state of the evidence we think this charge was erroneous. Witnesses had testified in behalf of the defendant in error that the telegraph company had established rules and regulations for office hours in the town of Mt. Vernon, and that under such rules and regulations the telegraph office was closed at night and until 8 o’clock in the morning. The defendant in error had a right to have the jury to pass upon the reasonableness of the office hours so established, as a complete defense to the charge of negligence as to not sending the telegram on the morning in question at 6:30 or 7 o’clock, or at any hour earlier than 8 o’clock. The effect of the charge in question was to deny such defense to the defendant in error, and to hold it guilty of negligence in failing to comply with the agreement which Condrey made with Knowles, according to the former’s testimony, to send the message by 6:30 or 7 o’clock on the 16th day of May, 1910. Knowles had no authority to change the regulation if it had been established and was a reasonable regulation. And if he agreed so to do, it would not be binding upon the telegraph company. This error requires a reversal of the judgment of the district court. Accordingly the decision of the Court of Civil Appeals, to the effect that the plaintiff in error was not entitled to recover under the evidence, should be held to be erroneous, while its judgment reversing and remanding the judgment of the district court for the error in the charge indicated herein, should be affirmed; and it is so ordered. 
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