Mrs. Jimmie Watson and husband sued Western Union Telegraph Company to recover damages for mental anguish resulting from the latter's negligent failure to deliver the following message: "J. P. McMillion died this evening ten twenty funeral three Wednesday." The deceased was a great-uncle of Mrs. Watson by marriage. There was sufficient evidence to show that an unusual degree of affection existed between them. The case was submitted on special issues, in response to which the jury found, in substance, that defendant had timely notice of the close relationship existing between the deceased and plaintiff and that the failure of defendant to deliver the telegram constituted negligence which resulted in mental anguish suffered by plaintiff, to her damage in the sum of $300. The court accordingly rendered judgment for plaintiffs and defendant has appealed.
Appellant presents the case for review in this court under one proposition as follows: "Since this was a suit to recover solely for damages for mental anguish alleged to have been suffered due to the defendant's failure to deliver a funeral notification message, wherein the undisputed evidence showed: (1) that the relationship of the parties involved in the message was that of great-uncle and great-niece by marriage; and (2) that the defendant telegraph company had no knowledge and was not advised at the time the message was delivered to it for transmission, or at any other time when it could have avoided the damages, that there existed an unusual degree of affection between said parties, the judgment of the trial court herein allowing a recovery by the plaintiff against the defendant for mental anguish was erroneous."
It appears to be the rule, in case of a death message, that the telegraph company is charged with knowledge of the identity of the parties, the actual kinship existing between them, and the purpose of the message; and if the relationship is close, such as father or son, husband or wife, brother or sister, or the like, the company is presumed to know that there exists, or probably exists, such degree of affection that those so related will likely suffer mental anguish if they are unable to arrive at the deathbed or attend the funeral of such relative. Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 6 L.R.A. 844, 16 Am. St. Rep. 920; Western Union Telegraph Co. v. Coffin, 88 Tex. 94,30 S.W. 896; Western Union Telegraph Co. v. Luck, 91 Tex. 178, 41 S.W. 469.
On the other hand, if the parties are only distantly related, or not related at all, the telegraph company is still charged with knowledge of such kinship as in fact exists, but it is not presumed to know that there exists such special affection that they will suffer mental anguish if they are unable to reach the deathbed, or attend the funeral of such person. In respect to the latter class of cases, it is therefore necessary to both allege and prove not only the existence of such special conditions or relations, but that the telegraph company had notice thereof at a time when, in the exercise of ordinary care, it could have avoided the damages. Western Union Telegraph Co. v. Wilson, 97 Tex. 22,75 S.W. 482; Western Union Telegraph Co. v. Samuels, Tex. Civ. App.141 S.W. 802; Western Union Telegraph Co. v. Taulbee, Tex. Civ. App.20 S.W.2d 232.
This court has heretofore held, in the case of Western Union Telegraph Co. v. Taulbee, supra (opinion by Chief Justice Gallagher), that when the kinship is remote, or non-existent, and in the absence of disclosure or inquiry, the law charged the telegraph company with knowledge of the actual relationship by blood or marriage existing between the parties, and with such relationship only, and not with knowledge of any special intimacy or affection that might have existed between them; that such conditions are special, and do not ordinarily exist where the relationship is by affinity only; and therefore the duty of disclosing such special condition was imposed upon the sender of the message, and no duty of inquiry with reference thereto devolved upon the telegraph company. See, also, Western Union Telegraph Co. v. Samuels, 141 S.W. 804, point 3; Western Union Telegraph Co. v. Gibson, Tex. Civ. App. 39 S.W. 198, 200; Western Union Telegraph Co. v. Luck, supra; Western Union Telegraph Co. v. Wilson, supra; Western Union Telegraph Co. v. Kuykendall,99 Tex. 323, 89 S.W. 965.
Applying the foregoing rules of law to the facts of this case has led us to the conclusion that the contentions of appellant must be sustained, because, we think, there is no evidence in the record that the *Page 352 appellant had notice of the special love and affection found to have existed between Mrs. Jimmie Watson and deceased.
Plaintiff's evidence in respect to the delivery of the telegram to the defendant company was elicited from the witness R. S. McMillion, who testified, substantially, that he was a son of the deceased; his father died about 10:20 P. M., on Tuesday night, February 20, 1940; he went immediately from his father's home in the country, a distance of about 15 miles, to Bowie, Texas, in order to send two telegrams, viz: one to Mrs. E. J. Moore at Morris, Oklahoma, and one to appellee at Hillsboro, Texas; he arrived at the depot in Bowie about midnight and told the telegraph operator the name and address of each intended receiver, the contents of the messages to be sent and the operater wrote out the messages which the witness signed; he told the operator Jimmie Watson lived on Park Drive at Hillsboro, but he had forgotten the street number of her residence; the operator told him, he believed, that the Hillsboro office was closed at night; the operator stated "he would do his best and get it out and if he didn't I could come back up there at the Western Union office for the telegram after it come back"; he told the operator Mrs. Moore was a sister of the deceased and he might have told the operator that Jimmie Watson's mother was a niece of the deceased; he paid the operator the charges for the transmission of the two messages and left; he returned to the telegraph office around 9 or 10 o'clock on the morning of February 21st and "asked if that telegram had been delivered or had come back and they didn't have any trace of it at that time."
Statements more pointed, and circumstances having, we think, more probative force, have been held not to constitute notice of such special conditions or relations. Western Union Telegraph Co. v. Taulbee, supra; Western Union Telegraph Co. v. Gibson, supra; Western Union Telegraph Co. v. Luck, supra; Western Union Telegraph Co. v. Wilson, supra, and Western Union Telegraph Co. v. Kuykendall, supra.
Since the record indicates that the case has been fully developed, and that no further testimony is attainable, we think this case should be finally disposed of in this court. Therefore, the judgment of the court below is reversed; and, as there was a breach of the contract to promptly transmit and deliver the message, for which breach plaintiff is entitled to recover nominal damages, judgment is here rendered for plaintiffs for the sum of one dollar and all costs in the court below. The costs of this appeal are taxed against appellees, the plaintiffs below.
Reversed and rendered.