
    WESTERN UNION TELEGRAPH CO. v. GRIFFIS.
    (No. 588.)
    (Court of Civil Appeals of Texas. El Paso.
    June 1, 1916.)
    Telegraphs and Telephones ,<@=>67(2) — Damages for Mental Suffering — Delay in Delivery.
    A telegraph message, worded, “Tour father died this afternoon at four o’clock” being insufficient to charge the telegraph company with notice that the addressee of the message would request a postponement of the funeral until he could arrive, the damages suffered by addressee by delay in delivery of the message preventing him from attending his father’s funeral were too remote.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dee. Dig. 67(2).]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Action by R. W. Griffis against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    J. M. Wagstaff, of Abilene, and N. L. Linds-ley, of Dallas, for appellant. W. P. Mahaf-fey, of Abilene, for appellee.
   HIGGINS, J.

Appellee sued appellant to recover damages alleged to have been sustained by reason of alleged negligent delay in the delivery of a telegram sent to appellee by T. O. Griffis, advising of the death of appellee’s father. Verdict was returned and judgment rendered in favor of plaintiff in sum of $250, as damages occasioned by Ms failure to attend tbe funeral of tbe deceased. Tbe defendant prosecutes tbis appeal therefrom, assigning as error tbe refusal of a requested peremptory instruction in its favor. .

Tbomas Griffis, father of appellee, died at bis residence near Lynnville, Tenn., on Sunday, July 4, 1915, at 4 p. m. After bis death, T. O. Griffis phoned to appellant at Pulaski for transmission and delivery to appellee at Abilene, Tex., tbis message:

“Lynnville, Tennessee, 4:25 p. m., July 4th, ’15. R. W. Griffis, Route 6, Abilene, Texas. Tour father died this afternoon at four o’clock. T. O. Griffis.”

Tbe message was promptly transmitted to Abilene, and reached there about 6 p. m. of tbe same day. It was delivered to appellee on Tuesday, July 6, 1915. For tbe purpose of tbis opinion, it will be assumed that the jury was warranted in finding that tbe delay in tbe delivery of the message to tbis date was negligent upon tbe part of defendant, though tMs finding is vigorously contested, and it is contended that tbe undisputed evidence shows no negligence upon appellant’s part in failing to make earlier delivery. Under tbe view which we have of tbe case, it is unnecessary to pass upon this question, and we express no opinion upon that phase of tbe case. Tbomas Griffis was buried at 4 p. m., Monday, July 5, 1915, near Lynnville. R. W. Griffis, the sender of tbe message, testified that be was one of tbe persons in charge of tbe funeral arrangements and burial of tbe deceased, and, bad appellee telegraphed him that be was coming to Lynnville to attend bis father’s funeral, be would have asked that tbe funeral be delayed until bis arrival.

Appellee testified that, bad tbe message been delivered to him promptly after it reached Abilene, be' would have wired back and told them to bold bis father’s body and postpone tbe funeral until be got there; that be would have started to Lynnville tbe same night at 11 o’clock; be would go from Abilene to Pulaski; thence to Lynnville, which was tbe nearest railroad station to tbe place where Ms father died and tbe nearest to tbe place of interment; that be would have reached there Tuesday night, July 6th, or Wednesday morning, July 7th; that be was expecting a message of tbis kind and was prepared to go at any time.

J. D. Griffis, a brother of appellee, testified be was one of those in charge of tbe funeral arrangements and burial of deceased; that tbe message sent appellee was sent at bis (witness) request, and, bad they received a message from R. W. Griffis asking that tbe funeral be delayed, they would have kept tbe body until bis arrival.

Appellant advances tbe proposition that the plaintiff’s claim for damages is too remote, and in tbis contention be is supported by Telegraph Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58; Telegraph Co. v. Motley, 87 Tex. 38, 27 S. W. 52, and Telegraph Co. v. White, 149 S. W. 790. TMs case falls within tbe principle announced in tbe cited cases, and upon tbe authority thereof it must be held that a peremptory instruction should have been given in appellant’s favor. Appellee relies upon Telegraph Company v. Swearingen, 97 Tex. 293, 78 S. W. 491, 104 Am. St. Rep. 876; Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982; Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460, 22 S. W. 656; and Telegraph Co. v. Ford, 40 Tex. Civ. App. 474,90 S. W. 677. But in each of these cases the message bade tbe addressee to come, and in such case tbe telegraph company was properly charged with notice that tbe injunction would probably be obeyed and that all necessary arrangements would be made, so that interment would not take place until the addressee arrived. A telegraph company handling,such a message must reasonably have foreseen that tbe addressee would wire back and have the funeral postponed if such was necessary in order to prevent tbe same occurring before tbe arrival of tbe addressee. Tbis, we think, is tbe main distinguishing feature between the line of eases first cited and those relied upon by appellee. In tbe case at bar the message, in our judgment, is insufficient to charge tbe defendant with notice that appellee would request a postponement of tbe funeral, and tbe damages for wMcb recovery is sought are too remote. This is tbe rule, as we deduce it from tbe Linn and Motley Cases.

The message considered in Johnston v. Telegraph Company, 167 S. W. 272, was of a precisely similar nature to tbis one. In principle, the cases cannot be distinguished. In that case, tbe trial court sustained a general demurrer to tbe petition. Upon appeal, tbe Court of Civil Appeals reviewed tbe cases noted above and held that tbe principle announced in Linn, Motley, and White Cases did not apply, but tbe case was ruled by tbe Swearingen and Norris Cases, and remanded tbe cause. Thereupon, tbe Supreme Court granted a writ of error and in doing so, we are informed, made this notation:

“We think the terms of the message do not give notice that the plaintiff would request a postponement of the funeral.”

In view of tbe action of tbe Supreme Court in tbe Johnston Case, it is evident that court is inclined to tbe view that the Linn and Motley Cases were applicable; and, if they are applicable in that, they are in tbis case also.

For tbe reason indicated, it must be held that tbe damages sought to be recovered herein are too remote, and tbe peremptory instruction should have been given.

Accordingly, tbe judgment of tbe court below is reversed and here rendered in appellant’s favor.

Reversed and rendered. 
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