This suit was brought by appellee for the recovery of $1975 damages for alleged negligence in delivering a message giving notice of the serious illness of his wife's father, thereby depriving *Page 405 her of being with her father during the last hours of his life, from which deprivation she suffered great mental anguish. Damages were also claimed for expenses incurred by a relative sending another message and a hack, for the expenses of which it was alleged the defendant became liable. The cause was tried by a jury, resulting in a verdict and judgment for plaintiff for $750, from which judgment this appeal is taken.
Conclusions of Fact. — 1. Appellee's wife's father, J.L. Lampkin, being sick at Harwood, about eighteen miles from Lockhart, where plaintiff and his wife then resided, J.L. Norwood, acting for appellee and his wife, delivered to appellant's agent at Harwood, at 6:10 o'clock p.m., August 1, 1891, for transmission by telegraph at Lockhart, Texas, the following message:
"HARWOOD, TEXAS, August 1.
"To I.E. Jobe, Lockhart, Texas:
"Mr. Lampkin is worse. Come down at once.
"J.L. NORWOOD."
For the transmission of which message he paid appellant's agent for appellee 25 cents. The message was written on one of appellant's blanks, upon which was printed the following: "Form number 1. The Western Union Telegraph Company. The company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages, beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission. This is an unrepeated message, and is delivered by request of the sender under the conditions named above."
2. The relationship between plaintiff's wife and J.L. Lampkin, and the serious illness of the latter, were known to appellant's agent at Harwood when the telegram was delivered her for transmission.
3. To transmit the message over appellant's wires to its destination it was necessary to telegraph it to San Antonio, thence to San Marcos, and from there to Lockhart. The message was received by appellant's agent in Lockhart at 8:20 p.m., August 1, 1891, but was not delivered to appellee until near 10 a.m. on the following day. I.E. Jobe was well known in Lockhart, and resided near appellant's telegraph office, and by the exercise of ordinary care and diligence the message could have been delivered within a few minutes after it was received by appellant's agent in that town, but such care and diligence was not used by appellant's servants in its delivery. *Page 406
4. J.L. Lampkin was on his deathbed when the message was delivered for transmission to appellant's agent at Harwood, and died at 10 o'clock a.m., August 2, 1891.
5. That by reason of the delay in the delivery of the message to appellee, his wife was prevented from reaching his father's bedside until after his death, by reason of which she suffered great mental anguish.
Conclusions of Law. — The petition alleged that plaintiff's wife's father, J.L. Lampkin, being ill at Harwood, eighteen miles from Lockhart, J.L. Norwood, acting for plaintiff and his wife, delivered to defendant's agent at 4:30 p.m., August 1, 1891, the following message:
"HARWOOD, TEXAS, August 1.
"To I.E. Jobe, Lockhart, Texas:
"Mr. Lampkin is worse. Come down at once.
"J.L. NORWOOD."
That defendant had notice of the relationship of plaintiff's wife, and "that it was absolutely necessary that plaintiff should get the message in the shortest possible time." That defendant did not deliver it until 10:30 a.m., August 2, 1891. That plaintiff lived and did business as a merchant in Lockhart. That if the message had been delivered promptly, plaintiff's wife could and would have been with her father in three hours after receipt of message. That the father died at 10:15 a.m., August 2, 1891. That immediately after receiving the message, plaintiff's wife left for Harwood in a private conveyance.
"That by reason of the delay in the transmission of said message, another message, costing the sum of 40 cents, was sent to plaintiff, inquiring about delay, and he was compelled to pay for the same; and by reason of said delay a hack was sent by L.A.L. Lampkin, a relation of plaintiff, from Luling to Lockhart, to take plaintiff's family to Harwood, and defendant is responsible for the same in the sum of $5; * * * and he pleads all these items as damages occasioned by the carelessness and neglect of defendant in transmitting and delivering said telegram."
The defendant specially excepted to the petition, upon the ground that the allegations as a basis for the recovery of the items $5 and 40 cents as actual damages are not sufficiently specific to put defendant on its defense against the same, or to authorize recovery; that the necessity of said expenditures and the special circumstances rendering them recoverable, are not set forth, and the same do not appear to be the natural and proximate result of the negligence complained of.
The action of the court in overruling this exception is complained of as error. We think this assignment is well taken as to the item of $5 claimed for the hack. The appellant can be held liable only for such damages as it might have reasonably contemplated would result from its *Page 407 failure to deliver the message with reasonable dispatch, and as were the natural and proximate result of such neglect of duty. At the time the message was delivered to the company, or at any time before its delivery to appellee, it could not have been reasonably contemplated by the agents of appellant that appellee's relatives had sent or would send a hack from Luling to Lockhart for his family, and there was no allegation to the effect that appellee's agent, or any one else, had informed the company or its agents that a hack had been or would be sent for appellee's family; nor can we see how the sending of the hack as alleged would naturally and proximately flow from a breach of appellant's duty. It might have been reasonably anticipated by the company that if it failed promptly to deliver this message, inquiry would be made by telegram in regard to it, and that an inquiry by such means would cost something; and we think the exception to that part of the petition claiming damages for the cost of such a telegraphic inquiry was not good.
The matter in the petition to which the exception was urged was not directly submitted to the jury in the court's charge. But it was not withdrawn. And as the appellee testified, that "he heard that L.A.L. Lampkin sent a hack from Luling to Lockhart for his family, and it was worth $4 for a hack from Luling to Lockhart," and the court having instructed the jury if they found certain facts to find for plaintiff such damages as you deem just and proper under all the evidence, the jury might have considered the item as an element of damages, and included it in its verdict. We think, however, that this error can be cured by a remittitur.
The appellant also pleaded that there was an error in the address in the message as it was received in Lockhart, which was caused without its fault, and that its agent at Lockhart, on account of the error, did not and could not know for whom it was intended. That when received its office was closed, and that on account of its being compelled, on the morning of the 2nd day of August, 1891, for a short time to surrender the use of its lines to the use of the Missouri, Kansas Texas Railway Company in conducting and directing its trains, there may have been some delay in the discovery of the error and delivery of the message. The part of the answer by which appellant sought to excuse the delay upon the ground that its wires were surrendered to the railway company was excepted to by appellee, and the exception sustained. Upon the authority of Telegraph Company v. Rosentreter, 80 Tex. 406, we hold this was not error.
The appellant pleaded, that at the time the contract for the transmission of the message was entered into, it was stipulated that appellant should not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message, and that appellee's claim was not presented either within that period or ninety *Page 408 days. An exception was made by appellee, and sustained by the court, to the answer pleading this stipulation as a defense. We think the exception was properly sustained. "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void." Acts 22nd Leg., sec. 2, p. 20. We do not believe that the act from which the quotation is made is violative of article 3, section 35, of our Constitution. The stipulation requiring the notice to be given within a less period than ninety days is void, and no notice whatever was necessary as a condition precedent to the institution of the suit.
No notice being required, the ruling of the court upon evidence offered by appellee to prove that notice such as was stipulated was given within ninety days, and the refusal of the court to give the special charge relating to such testimony asked by appellant, are immaterial, and in no way affected the merits of the case.
J.E. Lampkin, a son of the deceased, was allowed to testify, over appellant's objections, as follows: "We had sent messages to Lockhart in February and March, 1891, to Mrs. Ray and Mrs. Jobe about father's condition." This testimony was admissible as a circumstance to show that appellant's agent knew at the time she received the message for transmission of the relationship existing between the deceased and appellee's wife. And as it was the fact of sending such messages which was sought to be established as a circumstance to prove such knowledge, it was unnecessary to produce the original message for the purpose of proving it.
Witnesses were allowed to testify, over appellant's objections, as to how appellee's wife seemed to be affected by reason of her failure to get the message in time to reach her father before his death. In a case like this, where similar testimony was offered, our Supreme Court said: "As the jury would be instructed that they might in assessing damages include her mental anguish in their estimate, it was doubtless thought that evidence of mental condition * * * might be given. As juries may from their own knowledge and experience of human nature estimate damages proceeding from that cause without any evidence, it is not important to produce it, and when produced it ought not, as a general rule, to have a controlling effect; and yet we are not able to see why the fact that mental anguish was felt and was exhibited by speech or otherwise may not be proved for what it may be worth. It at least furnishes no ground for setting aside a verdict that might be sustained without any evidence as to the existence or degree of mental pain." Tel. Co. v. Adams, 75 Tex. 535 [75 Tex. 535].
The quotation from the decision applies as well to the expression of appellant's wife, "Words of mine are inadequate to describe my feelings," *Page 409 and to her statement, "While I suffered great mental pain on account of not being with my father in his last moments, and with the remainder of his family at that time in their affliction, yet I suppose that any other child who was devoted to a father and desired to be with him in his last hours, would suffer as much as I did," which were also admitted in evidence over appellant's objections.
It does not appear that the jury was influenced in their verdict by the remarks of appellee's counsel in his opening address. The remarks were improper, but the other counsel for appellee, in his closing address, strenuously insisted to the jury that it was their duty to banish from their minds such effect, if any, such remarks may have had upon them.
We think the charge of the court fully and correctly instructed the jury as to the law applicable to the case, and that there was no error in the court's refusal to give any of the special charges asked by appellant.
If the appellee will enter a remittitur in this court by February 7, 1894, of $5 on the judgment recovered in the court below, the judgment will be affirmed and the costs of this appeal taxed against appellee; otherwise the judgment will be reversed and the cause remanded.
Appellee to remit $5 and pay costs; Then affirmed.
Justice FLY did not sit in this case.
ON MOTION FOR REHEARING.