Being unable to concur in the disposition to be made of this cause, I respectfully enter the grounds of my dissent to the conclusion expressed in the majority opinion of the court.
As I understand the authorities cited in the majority opinion, the measure of a telegraph company's liability for its negligent failure to promptly deliver a message is the same as that applied to any person for his negligent failure to perform a contract obligation viz: to respond in damages for such consequences as may have been reasonably within the contemplation of the contracting parties. When a telegraph company contracts to deliver a message, which, on its face, shows that it relates to the funeral of a deceased person, the company is charged with notice (whether we call such notice actual, constructive or implied) that near relatives of the deceased will suffer mental anguish as a consequence of the failure to attend the obsequies because that is an experience common to the emotions of civilized mankind. However, a telegraph company is not charged with notice that a person whose kinship to the deceased is remote, or is by affinity only, will suffer mental anguish as a consequence of the failure to attend the funeral of the deceased because that is not a common or usual experience. Therefore, when the relationship between the deceased and the sendee in the telegram is remote, in order to hold a telegraph company liable for damages on account of mental anguish resulting from the negligent breach of its contract and in order to show the amount of such damages as were reasonably within the contemplation of the contracting parties, it must be shown by pleading and proof that there was not only an unusual degree of affection existing between the deceased and the sendee, but that the telegraph company had notice of such unusual ties of affection at a time when, in the exercise of ordinary care, it could have reasonably avoided the mental anguish and damages resulting therefrom. If the telegraph company has no knowledge or notice of such unusual ties of affection, then, *Page 353 as a matter of law, it may not be held for the special damages which it could not have reasonably anticipated. Necessarily the degree of mental anguish and the amount of damages resulting therefrom are dependent upon the degree of affection existing between the parties.
In this case, R. S. McMillion testified, in effect, that Mrs. Jimmie Watson lived in the home of deceased when she was a child, visited him regularly during his declining years for about two days in each year, and regarded him with that degree of affection which a grandchild usually bears for her grandparents. He did not disclose any of this information to appellant's agent at any time, although he testified that when he delivered the messages to appellant's operator he thinks he advised the operator "of the close relationship which existed between the deceased and Mrs. Watson," meaning thereby that he might have told the operator Mrs. Watson was a niece of the deceased, but he did not tell the operator how long Mrs. Watson had lived with the deceased or how much they thought of each other because "a fellow wouldn't think of things like that at a time like that." It was further shown that Mrs. Watson bore the given name of the deceased, having been "named after her Uncle Jim." She was expecting to attend the funeral, had arranged with the family to notify her immediately in case of the death, and would have attended the funeral had she received the telegram of notification. The funeral was not held until Thursday, February 22nd, and the distance from Bowie to Hillsboro was approximately 125 miles. It appears that the telegram was duly received in the Hillsboro office of appellant, but was never delivered to Mrs. Watson, and she was not advised of the funeral until she received a letter from a relative several days later.
While there was no direct evidence showing that appellant's agent had knowledge at any time of the unusual degree of affection which existed between the deceased and appellee, I think the evidence in the case did tend to show that appellant's agent had actual notice of sufficient facts and circumstances to put a reasonably prudent person similarly situated upon inquiry, which inquiry, if followed with due diligence, would have led to the timely discovery of such additional facts from R. S. McMillion on Tuesday night or on Wednesday morning, as appellant's agent might have desired, with reference to the affectionate relationship existing between the parties at interest. I do not think the law requires a complete disclosure to unsympathetic ears of all the details bearing upon the tender ties of affection that might exist between the deceased and the sendee in a death message. In my opinion, the contents of the message in this case, when considered in connection with the time of the night it was filed, the interest manifested by R. S. McMillion in returning to the telegraph office on Wednesday morning in order to ascertain whether the message had been delivered, and the other evidence herein referred to, was sufficient to raise fact issues on the ultimate controlling question of constructive notice. Consequently, I cannot say, as a matter of law, there was no evidence tending to show that appellant had such notice as to render it liable for the damages complained of. Herring v. Western Union Telegraph Co., 108 Tex. 77, 185 S.W. 293; Western Union Telegraph Co. v. Mobley, 112 Tex. 528, 249 S.W. 182; Western Union Telegraph Co. v. Hartfield, Tex. Civ. App. 138 S.W. 418, error denied; Western Union Telegraph Co. v. Riviere, Tex. Civ. App. 174 S.W. 650; Goodson v. Western Union Telegraph Co., Tex. Civ. App. 188 S.W. 736; Western Union Telegraph Co. v. Lane, Tex. Civ. App. 152 S.W.2d 780.