Not being able to agree with my associates, I hereby file the following dissenting opinion:
This suit was instituted by appellant against appellee for damages resulting to appellant by reason of the breach of its contract to deliver with reasonable dispatch the following telegram:
"San Antonio, Texas, 8:38 P. M. June 20, 1924. David Harris, Box 414, Mexia, Texas. Mothers dead. Come. Ollie Cameron."
— and by reason of which breach appellant was deprived of the satisfaction and consolation of being present at the funeral and burial of his mother, resulting in his damages in the sum of $2,000. In response to special issues, the jury found:
"(1) That Mr. Herring, the defendant's employé, at the time of receiving the message in question from Miss Vi Della Cameron, did not advise her of the office hours of the defendant company at Mexia, or that the office of said company at Mexia would be, or might be, closed during the night, and the message would not be, or might not be, delivered until the next day.
"(2) That a person situated as Mr. Herring was at the time he received the message, in the exercise of that degree of care and prudence that a person of ordinary care would have exercised under the same or similar circumstances, would have advised Miss Cameron that the Mexia office of defendant company would not be open, or might not be open, during the night.
"Defendant's special issue No. 1. B. H. Herring, defendant's agent, did not notify the sender of the suit message, at the time it was received by him for transmission, that the said message would not be delivered that night, but would be mailed the following morning.
"(3) That the employés of defendant company exercised that degree of diligence which an ordinarily diligent person would have exercised under the same or similar circumstances to transmit and deliver the message in question with reasonable dispatch and expedition.
"(4) That the amount of money, if paid now in cash, necessary to compensate plaintiff for the distress, disappointment, grief, pain, and anguish suffered by plaintiff on account of not being present at the funeral and burial of his mother is $1."
Appellant filed a motion to set aside said findings of the jury upon the grounds:
"(1) That the findings of the jury are contradictory, and preclude a judgment being rendered for either party.
"(2) That the amount of damages awarded is wholly inadequate as compensation to plaintiff for the injuries sustained."
Appellee filed a motion praying that judgment be rendered for appellant on the findings of the jury for $1. The court overruled appellant's motion, and granted appellee's motion, and rendered judgment for appellant for $1. Appellant then filed a motion for new trial on the same grounds as above stated, which was overruled, and appellant has duly appealed to this court.
Opinion. Appellant, by assignments and appropriate propositions, urges two grounds for the reversal of the judgment of the trial court, to wit: (1) That the court erred in refusing to set aside the verdict of the jury and grant a new trial because the findings of the jury, being contradictory, did not authorize a judgment for either side; (2) because the amount awarded appellant was manifestly inadequate to compensate him for the suffering and loss sustained by him, and indicates that the jury was actuated in fixing the amount thereof by some improper motive, or some misunderstanding or misapprehension of the *Page 882 issues involved in the case. Appellee, under two cross-assignments, presents three propositions. Under the first it contends, in effect, that the evidence did not authorize a judgment for appellant for any amount, and the trial court should have instructed a verdict for appellee. Under the second proposition appellee contends, in effect, that a judgment should have been entered in favor of the defendant upon the findings of the jury. Under its third proposition appellee contends, in effect, that under the facts developed upon the trial the jury was fully warranted in returning a verdict for only $1, and, if mistaken in this contention, appellant cannot be heard to complain, for he was not entitled to even the sum of $1.
The judgment in favor of appellant in this cause having been rendered upon the motion of appellee in response to its request and prayer that such judgment be rendered, appellee is not entitled to complain of the very judgment it requested to be rendered, and will not be heard to now contend that the judgment is not authorized both by the evidence and findings of the jury. If the rendition of this judgment was error, it was invited error on the part of appellee, and an error of which appellee cannot complain. Appellee's first and second cross-assignments are not entitled to consideration, and will not be considered. In M., K. T. Ry. Co. of Texas v. Eyer et al, 70 S.W. 529. 96 Tex. 72, our Supreme Court, by Chief Justice Gaines, said:
"Where a party by a request for a ruling leads the court into error, he should be precluded from claiming a reversal of the judgment by reason of the error so committed. To hold otherwise would be to permit him to take advantage of his own wrong."
See, also, Railway Co. v. Sein, 33 S.W. 215, 558, 89 Tex. 63; Galveston, etc., Ry. Co. v. McAdams, 84 S.W. 1079, 37 Tex. Civ. App. 575; Texas P. C. Co. v. Lee, 82 S.W. 1025, 98 Tex. 236; Bank v. Kilgore,43 S.W. 565, 17 Tex. Civ. App. 462; Wells v. Houston (Tex.Civ.App.)56 S.W. 233; Steinberg v. Jacobs, 132 P. 1060, 21 Cal. App. 765; 2 Cyc. 650, and cases there cited.
I think also that appellant is not entitled to complain of the judgment rendered in his favor, on the ground that the findings of the jury are contradictory. If some of the findings do conflict with another finding, which question is not necessary for us to decide, and if by reason of said conflict it was error for the trial court to render judgment for either party, as contended by appellant, such error was in his favor, and was harmless as to him. A party cannot complain of an error in his favor, nor of an error that is harmless as to him. Pecos N. T. Ry. Co. v. Suitor, 218 S.W. 1034,110 Tex. 250; El Paso Ry. Co. v. Shaklee (Tex.Civ.App.) 138 S.W. 190; G., H. S. A. Ry. v. Averill (Tex.Civ.App.) 136 S.W. 100; C., R. I. P. Ry. Co v. Wright,36 S. Ct. 185, 239 U.S. 552, 60 L. Ed. 431.
As the writer views this case as made by the record, the only question presented entitled to consideration by this court, at least the only question that requires consideration, is whether or not $1 compensation to appellant for the injury sustained by him is so inadequate that this court, in its discretion, should set same aside and award a new trial. In this case the appellant was a son of the deceased. He was, and always had been, on the very best of terms with his mother. He had recently, prior to her death, visited her; and, although deprived of attending her funeral and burial, he went to her home on the first train available after he was advised of her death, knowing, of course, he would be too late for the funeral, but for such consolation as might be derived from being near her grave as soon as possible. Appellant is a working man, an oil well driller, and probably could not express his sorrow, distress, and disappointment in such colorful language and glowing terms as some others might have done, but could only phrase his sorrow in the simple vernacular of his own field of toil. The evidence indicates that he did suffer great mental anguish by reason of being deprived of the privilege of attending his mother's funeral. It is true, where recovery of damages is sought for mental suffering, there being no rule for measuring the amount of such damages, a large discretion is confined to the jury and the trial court, and, unless it appears that they have abused their discretion in this respect, an appellate court should not disturb such verdict. G., H. S. A. Ry. Co. v. Hynes, 50 S.W. 624,21 Tex. Civ. App. 34; Telegraph Co. v. Piner, 29 S.W. 66,9 Tex. Civ. App. 152. But it is equally true, where the amount of damages awarded by the jury is clearly and manifestly inadequate, and therefore clearly wrong, it is not only the privilege, but the duty, of this court to reverse such judgment and remand the cause for another trial. It is no trivial matter for a person to be wrongfully deprived of the privilege of attending the funeral and burial of a mother, and for a jury to find that he is entitled to recover for such wrongful conduct on the part of appellee, and then allow him no damages, or allow him only $1 — the same as none — is inconsistent, unreasonable, and unjust, and so grossly inadequate as to indicate that the jury was actuated in fixing the amount by some improper motive or some misunderstanding of the issues involved. Prewitt v. Telegraph Co., 101 S.W. 812. 46 Tex. Civ. App. 123; Travers v. M. Ry. L. Co., 90 S.E. 732, 19 Ga. App. 15; Moseley v. Jamison, 8 So. 744, 68 Miss. 336. It is clearly the opinion of the writer that the assignment here discussed is the only question entitled to consideration, and that it should be sustained and the case reversed and remanded. *Page 883