
    LANCASTER et al. v. MEBANE.
    (No. 2684.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1923.
    Rehearing Denied Feb. 8, 1923.)
    1. Damages <⅜^23 — Right of recovery for breached contract limited to injuries that defendant could reasonably contemplate would result.
    The right of recovery for a breach of a contract is limited to such injuries as defendant, at the time he entered into the contract, reasonably should have contemplated would probably result from his breach thereof.
    2. Carriers «S3» 104 — Evidence held to show facts known to agent, charging carrier with notice that corpse was that of plaintiff’s wife and1 with contemplation of his mental suffering if carriage delayed.
    Evidence that plaintiff’s son made arrangements with the carrier’s ticket agent to ship corpse over a certain route, paid for its transportation, and bought tickets for four' persons to accompany it, shows facts sufficient to put the agent on inquiry as to the identity of the persons who were to use the tickets and as to their relationship to deceased, so that the carrier was charged with notice that the corpse was that of plaintiff’s deceased wife, and of the fact that one of the tickets was for use by him, and should be held to have contemplated that he would undergo mental suffering if the contract was breached.
    3. Appeal and error «su» 1004(3) — Judgment for $1,250 in accordance with remittitur for delay in transportation of corpse not to be interfered with on appeal as excessive.
    A judgment for $1,250 in accordance with a remittitur, instead of $1,500, found by the jury for delay in the transportation of the corpse of plaintiff’s deceased wife, resulting in the postponement of funeral arrangements, will not be interfered with on appeal as excessive.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Suit by J. A. Mebane against J. L. Lancaster and, another, receivers. From judgment for pláintiff, defendants appeal.
    Affirmed.
    This was a suit by appellee against appellants for damages he claimed he suffered because of the breach by them of a contract they entered into to transport the corpse of his deceased wife from 'El Paso to DeKalb, by way of Texarkana, and on trains specified, which resulted in a delay of about eight hours in the arrival of said corpse at De-Kalb.
    It appeared from the testimony that ap-pellee and his wife and children resided at DeKalb during many years before 1921, when they moved to El Paso for the benefit of her health. She died in El-Paso April 25, 1921. Appellee determined to have her remains buried at DeKalb, and at once after her death his son telegraphed persons there to arrange accordingly. The son, appellee, and his two daughters were to accompany the corpse to DeKalb. The son went to appellants’ ticket office in El Paso and talked with appellants’ agent about the way to go.
    “We talked,” the son testified, “about trains leaving El Paso, and when I could get home, and we decided the quickest way was to come by Texarkana on the Sunshine Special and catch the early train out of Texarkana, and that would put us in home at 9:45. I think afr that time the Sunshine Special left El Paso at 4:15. My mother died on the 25th day of April. Q. Now, if you got transportation and left El Paso at 4:15 the 25th, what time would you have 'gotten into DeKalb via Texarkana with all connections having been made? A. 9:45 on the morning of the 27th. As to my discussing with the agent any other route except that one, he said something about the Fort Worth train, and we discussed that, but it would throw us a few hours late. Had we taken the 4:15 Sunshine Special at El Paso April 25th and changed at Fort Worth to the Trans-Continental Division of the Texas & Pacific, we would have gotten to DeKalb April 27th about 5:25 or 5:30. I forget exactly. I objected to that route and told him I wanted to be routed the other way, and gave him to understand why; and he wrote the tickets that way (by the way of Texarkana), because that would throw us nearly a day late. I bought the transportation for my deceased mother, myself, my father, and my two sisters; two sisters to Tex-arkana and one sister to Fort Worth, and she went home to Tulsa from Fort Worth. All of the tickets for DeKalb were marked ‘via Tex-arkana.’ ⅜ * ⅛ j told, him (the agent) I wanted a corpse ticket and four other tickets, and one to Fort Worth.”
    Appellee and his son and daughters left El Paso with the corpse at 4:15 p. m. April 25th, on the Sunshine Special, and reached Fort Worth about 3 p. m. April 26tb, where, without their knowledge, the corpse was taken from Jlie train and held for transportation to DeKalb over the Trans-Continental Division of the Texas & Pacific Railway. Appellee testified he did not learn until the Sunshine Special reached Big Sandy that the corpse had been left at Fort Worth, and the son testified that the train reached Mt. Pleasant (having been detoured over tracks of the St. Louis Southwestern Railway) before he knew thereof. The Sunshine Special was due at Texarkana at about 10 p. m. April 26th, but was late and did not reach there until about 2 a. m. April 27th. The train the corpse was to have been transported on from’ Texarkana to DeKalb by the terms of the contract left Texarkana at 8 a. m. April 27th, and arrived at DeKalb at 9:45 the same day. Appellee’s son testified that his wife, with his car, met him in Tex-arkana, and the inference is that he went from! Texarkana to DeKalb in his car instead of on the train last referred to above. Whether appellee and his daughters also went by automobile from Texarkana to De-Kalb, or on said train, does not appear in tbe record. Tbe corpse reached DeKalb over said Trans-Continental Division at about 5:50 p. m. April 27th. A consequence of tbe violation by appellants of their contract was to delay tbe funeral services from about 9:45 a. m. to about 5:50 p. m. of April 27th. The only issue tbe court submitted to tbe jury was one as to tbe amount appellee was entitled to recover as compensation for tbe mental anguish be endured as a result of appellants’ breach of tbe contract. Tbe jury found tbe amount to be $1,500. Thereupon, on their finding and others made by himself, tbe court rendered judgment in appellee’s favor for said sum1. At tbe bearing on appellants’ motion for a new trial tbe court concluded the judgment was $250 in excess of what it should be for, and so advised tbe parties. Thereupon appellee filed a remittitur of $250 of tbe amount, and the court so modified tbe judgment as to award appellee a recovery of $1,250 instead of $1,500. It does not appear in tbe record tbat appellants requested the trial court to submit any other issue to the jury than tbe one be did submit to them.
    King, Mahaffey & Wheeler, of Texarkana, for appellants.
    Sid Crumpton, of Texarkana, and O. B. Pirkey, of New Boston, for appellee.
   WILLSON, C. J.

(after stating tbe facts as above). Appellants excepted to tbe trial court’s charge to tbe jury, on tbe ground tbat its effect was to instruct them to find in ap-pellee’s favor; and requested tbe court to instruct tbe jury, instead, to find in their favor. Tbe action of tbe court in overruling the exception and in 'instructing tbe jury as he did, and in refusing to instruct them as be was requested to, presents tbe main question on tbe appeal.

Tbe contention is that it did not appear tbat appellants bad notice of tbe interest of appellee in tbe performance of tbe contract, and tbat they therefore were not liable to him1 for injury be suffered because they breached it. Tbe validity of tbe contention must, of course, be determined with reference to tbe rule applicable in all suits for-damages based upon tbe breach of a contract, which limits tbe right of a plaintiff to a recovery for only such injuries as tbe defendant at the time be entered into the contract reasonably should have contemplated would probably result from bis breach thereof.

Appellants insist tbat tbe damages awarded appellee were not such as they reasonably should have contemplated be would suffer, and therefore that tbe judgment was unauthorized. Tbe insistence is based on testimony showing tbat tbe tickets were purchased by appellee’s son, and tbe absence, they assert, of testimony showing tbat at tbe time be purchased same appellants bad notice tbat be' was acting for appellee, or notice of tbe relationship existing between him and tbe purchaser, or between him and tbe deceased, or even of bis existence. Appellee, on the other hand, insists it sufficiently appeared from the testimony tbat appellants had notice of such relationship.

In support of their view of tbe testimony, appellants invoke tbe rule settled in this state as applicable in suits against telegraph companies for damages for mental suffering, that such companies “cannot,” quoting from tbe opinion of the court in Tel. Co. v. Taylor (Tex. Civ. App.) 162 S. W. 999, “be held liable for damages resulting from’ méntal suffering on tbe part of any person who is mot referred to in, or whose name is not connected with, tbe message, unless tbe telegraph company has notice from some other source that such other person is interested in tbe prompt delivery of tbe message,” and cited Express Co. v. Fuller, 4 Tex. Civ. App. 213, 23 S. W. 412, and Nichols v. Eddy (Tex. Civ. App.) 24 S. W. 316, as illustrating tbe application of tbe rule in cases like this one. Tbe contract in tbe Fuller Case for tbe carriage of the corpse of Dixie Fuller was made in tbe name of bis father, tbe plaintiff, to whom tbe corpse was consigned. Tbe recovery, in part, seems to have been for mental suffering of tbe mother, who was not named in tbe contract, and whose relationship, or even existence, was not disclosed to tbe carrier. “Therefore,” tbe court said, “her mental anguish and suffering could not have been reasonably in tbe contemplation of tbe express company as a probable consequence of a breach of tbe contract.” In tbe Eddy Case it appeared tbat tbe plaintiff, Mrs. Nichols, resided in Monticello, Ark.; that her daughter died at Lone Oak, Tex., where she was attending school, boarding with one Vanlandingham; tbat Vanlanding-ham,■ after notifying Mts. Nichols by telegraph of her daughter’s death, left Lone Oak for Monticello, with tbe corpse, traveling over the appellee’s line of railway. Tbe carriage of tbe corpse was negligently delayed 24 hours, and it was in an advanced state of decomposition when it reached Monticello. It was held tbat tbe plaintiff was not entitled to recover, because her existence had not been “disclosed,” quoting, “to appellee’s agent, .nor tbe relationship she bore to tbe deceased in any way made known to appel-lee.”

If there is a material difference between tbe facts of tbe Fuller and Eddy Cases and this one, it lies in tbe fact tbat there were no circumstances in those cases and there were circumstances in this one which constituted notice to tbe defendant tbat tbe plaintiff probably would undergo méntal suffering if tbe contract was breached.

Appellee insists there were such circumstances in this case, in that, as was shown by the testimony, appellee’s son adviked with appellants’ agent as to the quickest and most direct route from El Paso to DeKalb, and at the time he purchased the ticket for the corpse purchased four other tickets entitling four persons to go on the train the corpse was to go on, by the same route, and to the same place the corpse was to go. Appellee urges that it therefore appeared that the agent reasonably must have known that four persons expected to accompany the corpse from El Paso to DeKalb, that in purchasing the tickets appellee’s son was acting for at least three other persons than himself, and that each of those persons had an interest in the deceased -which might be affected by the breach by appellants of their contract. Appellee further urges that appellants’ agent, knowing that much, was bound, if he wished information as to who expected to use the tickets and their relationship to the deceased, to make such inquiry of his son as was necessary to place them in possession thereof. As supporting his view, appellee cites Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920, where Judge Henry, discussing the question of notice to a telegraph company, made the statement following, which Judge Brown, in Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826, declared to be “eminently just and correct”:

“When the general nature of the communication is plainly disclosed by its terms, instead of requiring the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires information about such matters, for him to obtain it from the sender, and if he does not do so to charge his principal with the information that inquiries would have developed.”

And appellee cites Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843, as also supporting his view. In that case it appeared that the plaintiff Broesche resided near Burton. His wife died in Austin July 17th. Broesche and his family physician, Dr. Hons, went to the telegraph company’s office in Austin, where, at 6 or 7 o’clock p. m. of the day specified above, 'Hons in his own name sent a message to Hoffman, bis brother-in-law, at Burton as follows: “Mrs. Broesche is dead; will bring corpse on train to-night.” Broesche paid the charges for transmitting the message. The corpse reached Burton about 1:30 a. m. July 18th, but the message was not delivered until about 8:30 a. m. July 18th. On the appeal the telegraph company complained of the charge of the court to the jury in that he failed to submit to them a question as to whether, if Hons acted for Broesche in sending thq message, the company had notice he was so acting. In overruling the contention and affirming the judgment in Broesche’s favor the court said:

“We are of opinion that it was immaterial whether appellant was notified that Hons was acting as agent for appellee or not. We cannot see how this could have affected the rights or influenced the conduct of appellant's agents. Appellee and Hons were together in the presence of the agent to whom the message was delivered at Austin. Appelled paid the charges for transmitting the message; the operator to whom the message was delivered testified he icnew from the wording of the message that it demanded prompt delivery. ■ Conceding that appellant was not informed that Hons was acting as agent for appellee, we are unable to understand how the lack of this information affected in any way the conduct of appellant’s agents. It does not appear that they would have done more or acted differently under the contract.”

The difference between the Broesche Case and this one, so far as the application of the principle in question is concerned, lies in the fact that the plaintiff in the Broesche Case paid the charges- on the message and was with Hons when Hons sent same, while plaintiff here was not with his son when his son purchased the tickets and it does not appear in the record that he paid for same.

The conclusion we have reached is that the facts shown to have been known to appellants’ agent were sufficient to put him upon inquiry as to the identity of the persons who were to use the four tickets for DeKalb purchased by appellee’s son, and as to the relationship of such person to the deceased. There is no reason disclosed by anything in the record to doubt that inquiry of appellee’s son would have resulted in full information to the agent about those matters. Therefore, we think, appellants were chargeable with notice of the fact that the corpse was that of appellee's deceased wife, and of the fact that one of the tickets was for use by him in accompanying the corpse to De-Kalb, and bonce should be held to have contemplated that he would undergo mental suffering if they breached their contract. It follows that we think appellants’ contention to the contrary should be overruled.

After the remittitur referred to in the statement above was filed and judgment was accordingly rendered in appellee’s favor for $1,250, instead of $1,500, appellants insisted .in the court below, and insist here, that the recovery allowed was still excessive. The jury and trial judge had the plaintiff and other witnesses before them, and therefore were in a more favorable position than we are in to determine, intelligently and justly, the amount which would compensate appellee for the, suffering he endured. There is nothing in the record which suggests that they might have been influenced, in estimating the amount; by anything which should not have influenced them, and we have no reason to believe that our estimate, if it were for a less amount than that of the trial judge’s, would be nearer right than his was, ‘

The judgment is affirmed. 
      @s»ITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     