Opinion. — In September 1889, and for a series of years prior thereto, appellee lived in the town of Paris in Lamar County, Texas.
On the 22nd or 23rd day of said month Dixie Fuller, a grown son of *Page 613 appellee, died in Phoenix, Arizona. On the 27th day of same month appellee, by his agent, T.A. Fuller, contracted with appellant for the shipment of the body of Dixie Fuller from Phoenix, Arizona, to Paris, Texas, for a consideration of $91.40 paid in advance. This contract was reduced to writing in the following form:
"WELLS FARGO COMPANY'S EXPRESS. "Read the conditions of this receipt. Express charges do not include duties nor custom house expenses, which must be guaranteed by shipper.
"PHOENIX, ARIZONA, OFFICE, Sept. 27, 1889.
"Value of $___________
"Received from B.F. Fuller, corpse, valued at $_______, addressed, B.F. Fuller, Paris, Texas, which we undertake to forward to point nearest destination reached by this company, on these conditions, namely: That Wells Fargo Company shall not be held liable for loss or damage, except as forwarders only, within their own lines of communication, nor for any loss or damage by fire or casualities by navigation and inland transportation (unless specially insured and so noted herein); nor of such as can be referred to the acts of God, the restraints of government, riot, insurrection, piracy or hazards of war; nor for default, neglect or mishap on the part of any connecting or intermediate line, individual, corporation or association, to whom said property may be transferred for further transmission; nor for an amount exceeding fifty dollars on any shipment, unless its true value is herein stated; nor for any amount on goods not properly packed and addressed; on fragile fabrics, unless plainly marked as such; nor on articles consisting of or contained in glass. That in respect to C.O.D. goods, if delivery cannot be made in 60 days after consignment, this company may at its option, return the same to consignor, who shall pay transportation thereon both ways, the liability of this company on goods pending such action, and while in its custody, to be that of warehouse men only. And it is further stipulated that Wells Fargo Company shall not be liable under this contract, for any claim whatsoever, unless presented in writing from 60 days from the date thereof, and that these provisions shall extend to and inure to the benefit of each individual, corporation or association, to whom the above specified property may be transferred and entrusted in order to reach its destination.
"The party accepting this receipt hereby agrees to its conditions.
"Not negotiable.
"Charges paid, $91.40.
"For the Company, G.W. GREENLEAF."
The most direct route from Phoenix, Arizona, to Paris, Texas, was via El Paso and Fort Worth. Appellant shipped the body via El Paso and San Antonio, Texas, which was appellant's usual route of shipment and was about 600 miles further than by Fort Worth, and *Page 614 delivered it in Paris about twenty-seven hours later than if it had been shipped by the latter route.
In consequence of this delay there were no funeral services at the church as appellee had expected and desired, the coffin was not opened except to show the face through the glass, and the body was removed from the train to appellee's house, a short funeral service held and the body buried at night, only about twenty-five or thirty persons being present.
Appellee testified that on account of this delay and his inability to ascertain the whereabouts of the body he suffered great distress of mind. On account of the failure to ship the body over the most direct route appellee sued and recovered $2000 damages.
Under the charge of the court the jury could not have rendered the verdict they did without finding that appellant failed to exercise due care and was negligent in the selection of a route by which to ship the body.
There is testimony that will sustain such finding and therefore, and in deference to the verdict, we so find.
The court did not err in permitting T.A. Fuller to testify that he pointed out to appellant's agent at Phoenix on the maps of Arizona and Texas the route via El Paso and Fort Worth as the most direct route, and at El Paso objected to the body being sent via San Antonio and insisted on the agent there sending it via Fort Worth because it was the nearer route, etc. The evidence was admissible to show that appellant had knowledge of the shorter route.
Nor is there any fatal variance between appellee's pleading and his evidence. It is true that the written contract did not in terms require shipment via Fort Worth; nor did it require it to be via San Antonio; but the law, which was part of the contract, required appellant to exercise reasonable care in selecting a route, and the petition charges that such care was not exercised.
The verdict is large; but, as the law of this State allows actual damages to be recovered in such cases as compensation for mental suffering, we do not think this court should hold it to be excessive.
Affirmed.
Writ of error refused. *Page 615