This suit was instituted by Henry Herring to recover damages for mental anguish suffered by his wife on account of the defendant Western Union Telegraph Company's negligent failure to transmit and deliver to him the following message: "9-25-08. To Henry Herring, Roswell, N.M. C. B. died last night at San Antonio. Mrs. C. B. Scarbrough." Plaintiff's wife is a daughter of the deceased and sender of the message.
After the evidence was introduced the trial court instructed a verdict for the defendant, which ruling is sought to be defended by appellee on the ground, first, that it had no notice of the beneficial interest of Mrs. Herring, and second, that it had no notice that the deceased was to be buried at Abilene rather than at San Antonio, which latter place the evidence indisputably shows plaintiff's wife could not have reached in time for her father's funeral.
It is, of course, well settled both on principle and authority that a telegraph company can not be held liable in damages for negligence where it has no notice of the beneficial interest of the party complaining. It is equally well settled, however, that this notice may be imparted not alone by the terms of the message itself, but by evidence independent thereof as well. The witness, who delivered the message in controversy to appellee's agent at Abilene, in detailing what took place between himself and the agent, says: "I asked him to get it off as quick as he could, that I was telegraphing to C. B.'s children and friends. I did not say anything else. I did not say that Mr. Herring and his wife were any relation at all, but *Page 7 I insisted on him getting it off — this identical message off. As to what I said about it, I asked him to get it off as quick as he could because C. B. was dead. The purpose of sending the telegram was so as they could get word and get here. They knew he was a long ways off. As to what it was I said about telling him that I was getting all of the children here I could, I told him that C. B. was dead and that I wanted to get all of his children and friends here." This evidence, we think, was sufficient to put the defendant company on notice that the purpose of the message was to secure the attendance at Abilene of the friends and children of the deceased. This undoubtedly included appellant's wife. If appellee had desired more definite information it should have made inquiry at the time. As against an instruction to find for the defendant it is sufficient if the evidence tended to show that plaintiff's wife was seriously interested in the transmission and delivery of the message and the defendant had notice of such interest. This we think it did.
For the error of the court in instructing a verdict the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.