cutes this appeal to reverse the judgment | essary to pass the title. Hale v. Citizens' rendered in favor of the defendant. The facts are as follows: S. M. Williamson testified: "I am president of the Williamson Bank & Trust Company, a banking corporation or ganized under the laws of the state of Tennessee, doing business in the city of Memphis. The bank, in the ordinary course of its business, makes a practice of discounting notes and negotiable instruments. The note shown me is signed by J. B. Miles, Jr.. dated August 29, 1912, Bank of Monette, 163 S. W. 775. In that case the court held that, where one makes a note payable to himself or order, indorses it in blank, and delivers it to the agent of the company in whose favor it was executed, it becomes, in effect, a note payable to bearer, and its indorsement by the agent of the company in whose favor it was made is not necessary to constitute the holder of it a bona fide holder in due course of business. Wiland due three months after date. Miles executed the note in favor of himself and indorsed liamson, the president of the plaintiff comit in blank. On the 13th day of November, pany, testified that he purchased the note 1912, our bank purchased the note from Rhea in due course of business, and paid therefor P. Cary, attorney for Lamar Heiskell, receiver, and paid therefor the sum of $200. Heiskell its face value. He stated that no indorsehad been appointed receiver for the South- ment was made by the receiver from whom western Motor Car Distributing Corporation, he purchased it because the note was made which was the owner of the note. The amount paid for the note was placed to the credit of payable to the maker thereof, and because the receivership to enable the receiver to have the attorney for the receiver guaranteed funds to take care of and pay for certain cars its payment, and on this account it was not which were in the city at that time and upon considered necessary for the receiver to inwhich drafts with bills of lading attached had been drawn. The proceeds thus enabled the dorse the note. Williamson further testified receiver to obtain a very considerable profit for that he paid full value for the note, and placthe receivership by being able to protect the ed the amount to the credit of the receiver in purchase of the cars. Neither the Williamson Bank & Trust Company nor myself had any order to enable the latter to have funds with knowledge or information whatever of the cir- which to take care of and pay for certain cumstances attending the execution of said motor cars; that at the time the bank purnote, except that Mr. Cary stated to me that the note was executed in payment of stock chased the note neither it nor its officers and which had been subscribed by Miles to the agents had any notice whatever of any defect motor car distributing corporation. I had no in the note or that there was any defense to knowledge whatever that there was any defense it. Williamson's testimony in this respect was to the note. The note is past due, and Miles has refused to pay it. I did not know that he uncontradicted. It was reasonable and conclaimed to have any defense whatever to the sistent with itself, and there was no fact or note until this suit was instituted. The suit circumstance introduced in evidence which was commenced on April 17, 1913." tended in any way to contradict it. There The defendant, J. B. Miles, Jr., testified fore, whatever may be the rule elsewhere, in his own behalf as follows: "I executed the note sued on and introduced in evidence. At the time of the execution of the note a written receipt was given me in exchange for it, which is as follows: 'August 29, 1912. Southwestern Motor Car Distributing Corporation, Memphis, Tennessee. Received from J. B. Miles (note) $200.00 for two hundred shares of the preferred stock of the Southwestern Motor Car Distributing Corporation. In case the stock is fully paid for and is not tendered the consideration received by this corporation will be refunded. [Signed] P. A. Daulter.' The consideration for the note was stock in the Southwestern Motor Car Distributing Corporation. The agent of the corporation who induced me to subscribe for the stock and execute the note represented to me that the corporation had plenty of money, but only wanted me to take $200 worth of stock because of my influence. He told me that if I did not get the stock they would pay the money back. The corporation was engaged in selling automobiles. Before the note was presented for payment the corporation went into the hands of a receiver. The stock was never sent to me.' [1, 2] The undisputed evidence shows that Miles, the maker of the note, drew it to his own order, and then indorsed it in blank and delivered it to the agent of the Southwestern Motor Car Distributing Corporation. It became then, in legal effect, a note payable to bearer, and no written indorsement was nec169 S.W.-24 under the principles of law decided in the case of the Bank of Monette v. Hale, 104 Ark. 388, 149 S. W. 845, the court should have directed a verdict for the plaintiff. In that case the amount which the bank paid for the note was placed to the credit of the insurance company in whose favor the note was executed, and the proceeds remained in the bank for a period of one year. On the next day after the bank purchased the note it was notified by the maker thereof that he had a valid defense to the note and did not intend to pay it. Although the amount which the bank had paid for the note was then in the bank placed to the credit of the corporation in whose favor the note was executed, the court held that the undisputed evidence showed that the bank was a bona fide purchaser for value in due course of business, and was entitled to recover. It follows that the court erred in not directing a verdict for the plaintiff. For that error the judgment will be reversed, and, inasmuch as the case has been fully developed, judgment will be entered here for the amount of the note, with interest thereon at 6 per cent. per annum from the 29th day of August, 1912. delivered to appellant's agent at said town of 'WESTERN UNION TELEGRAPH CO. v. Reagan, for transmission to A. G. Johnson, CHAMBERLAIN. (No. 5357.) (Court of Civil Appeals of Texas. Austin. May 13, 1914. Rehearing Denied June 17, 1914.) 1. DAMAGES (§ 117*)-BREACH OF CONTRACT— MEASURE OF DAMAGES. Damages are recoverable for a breach of contract, and the proper measure is pecuniary compensation for the injury suffered. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 285, 286, 288; Dec. Dig. § 117.*1 2. TELEGRAPHS AND TELEPHONES (§ 68*)-DELAY IN TRANSMISSION OF MESSAGES-DAM Mental anguish is that keen and poignant suffering which results from some great grief; and hence mere disappointment because plaintiff's grandchildren were prevented from visiting him on account of delay in the transmission of a telegram was not mental anguish for which damages might be recovered. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.* For other definitions, see Words and Phrases, vol. 5, p. 4475.] 4. TELEGRAPHS AND TELEPHONES (§ 68*)- AcTIONS FOR DELAY IN TRANSMISSION OF MES SAGES. For the sender of a telegram to recover damages for mental anguish resulting from delay in its transmission, the facts must have been such that the sender would naturally suffer mental anguish in case of delay, and they must have been known to the agent of the telegraph company. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*] Appeal from Falls County Court; W. E. Hunnicutt, Judge. Action by A. G. Chamberlain against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Geo. H. Fearons, of New York City, and Spell & Sanford and W. W. Naman, all of Waco, for appellant. Tom Connally, of Marlin, for appellee. JENKINS, J. This suit was brought to recover damages for mental suffering alleged to have been occasioned by the negligent failure of appellant to promptly deliver the telegram hereinafter set out. From a judgment in favor of appellee, appellant appeals and assigns error upon the action of the court in overruling its general demurrer to appellee's petition. Appellee alleged: That on June 3, 1912, he resided near Reagan, in Falls county, Tex., and that on that day he caused to be charges prepaid, at 1136 Wall street, Los Angeles, Cal., the following telegram: "Bring children. Will pay fare. "[Signed] A. J. Chamberlain." That his daughter was the wife of said Johnson, and was then contemplating a visit to appellee. That the children mentioned in said message were the children of his said daughter, and the grandchildren of appellee. That his daughter was not financially able to pay the railroad fare of said children, and would have brought them had said telegram been promptly delivered, but not otherwise. That an affectionate regard existed between appellee and his said grandchildren, all of which facts were explained and fully known to appellant's agent at Reagan, when he received said telegram for transmission. That appellant negligently failed to deliver said telegram until the 8th day of June, 1912, in consequence of which appellee's daughter left Los Angeles on her visit to appellee on June 6, 1912, without bringing said children with her. That appellee, on account of such failure to deliver said telegram, was deprived of the pleasure of seeing said children and enjoying their society, by reason of which he "suffered great mental anguish and pain." [1, 2] It is a general principle of law that damages are recoverable for breach of contract, and that the proper measure of dauages is pecuniary compensation for the injury suffered. Mental suffering, in a proper case, has always been recognized as an injury for which damages are recoverable. The common law, however, from motives of public policy, adopted certain standards by which damages for breach of contract were to be measured, which excluded mental suffering. For instance, the measure of damages for failure to pay money is the lawful interest on same; for failure to deliver personal property contracted to be sold, the difference between the market price and the price agreed to be paid, etc. The reason for this was that, in the absence of such standard, the uncertainty as to the amount of damages that might be recovered would open up an unlimited field of litigation, to the discouragement of business and the annoyance of the citizens. For these reasons, it became a general rule of the common law that damages for purely mental suffering, unaccompanied with bodily pain or willful or malicious wrong, were not recoverable; and hence that such damages were not recoverable, where they arose solely from breach of contract. Mental suffering was not excluded for the reason that it might not, in some instances, be just as acute and intense from the breach of a contract as when induced by traumatic injury. But by reason of the ease with which it might be simulated, and the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series, & Rep'r Indexes This definition of "mental anguish" might well have been deduced from the general tenor of Texas cases on this subject, and is in accord with the decisions in other states. We quote from 37 Cyc. p. 1780, as follows: difficulty of disproving it on account of the, all the cases in this and other states where intangible nature of mind, and the varying such damages are allowed is 'grief and mental anguish.' * * The lexicographers define degrees of temperament, it was thought best anguish to be 'intense pain of body or mind.' that this field of litigation be entirely closed. It is derived from the Latin word 'anguis,' a The introduction of telegraphy, and the pe- snake, referring to the writhing and twisting of culiar duties of telegraph companies as pub- the animal body when in great pain." lic service corporations, was thought by the Supreme Court of Texas, and as the writer thinks justly so, to demand a modification of the ancient rule that damages for mental suffering were not recoverable for breach of contract unaccompanied by bodily pain, or the element of willful wrong. So Relle v. Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805. This doctrine has been followed in several other jurisdictions, though a majority of the states and the Federal courts still apply the old rule to telegraph cases. It is the settled doctrine of this state that damages are recoverable for mental suffering of a certain character, occasioned by the failure to promptly transmit and deliver a telegram under certain circumstances. In addition to cases where the telegram related to the sickness or death of a near relative, or where physical suffering resulted, this doctrine has been applied in this state in the following cases: Telegraph Co. v. Procter, 6 Tex. Civ. App. 300, 25 S. W. 813; Telegraph Co. v. Norton, 62 S. W. 1081; Rich v. Telegraph Co., 110 S. W. 95; Telegraph Co. v. Simpson, 73 Tex. 422, 11 S. W. 386. Application of this doctrine has been denied in the following cases: Telegraph Co. v. Arnold, 96 Tex. 494-496, 73 S. W. 1043; Telegraph Co. v. Luck, 91 Tex. 181, 41 S. W. 469, 66 Am. St. Rep. 869; De Voegler v. Telegraph Co., 10 Tex. Civ. App. 229, 30 S. W. 1107; Ricketts v. Telegraph Co., 10 Tex. Civ. App. 226, 30 S. W. 1105; Telegraph Co. v. Bell, 61 S. W. 942; Telegraph Co. v. Partlow, 30 Tex. Civ. App. 599, 71 S. W. 584; Telegraph Co. v. Edmonson, 91 Tex. 206, 42 S. W. 550; Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127. [3] The distinction in principle, as applied to the two lines of cases above cited, may not, in some of them, be very clear, but running through them all it may be safely said these two elements are announced or recognized as essential to recovery, viz.: The suffering must be of that character denominated mental anguish, and the circumstances must be such that the company could reasonably have anticipated that such suffering would probably result from the failure to promptly transmit and deliver the telegram. What is mental anguish? The Supreme Court of North Carolina in Hancock v. Telegraph Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403, said: "There is a very material difference between the significance of those words ('disappointment' and 'regret') and that keen and poignant mental suffering signified by the words 'mental anguish.' * The language used in nearly "It is well settled, however, that damages cannot be recovered on this ground for every mental disturbance or injury to the feelings, and that to constitute mental anguish there must be something more than worry, vexation, or disappointment or anger or resentment." When the telegram relates to the sickness or death of a near relative, the failure to transmit and deliver it promptly may result in depriving the party to whom it is sent of the opportunity of ever again seeing the loved one alive, or of looking upon the face of the beloved dead, or of assisting in the sad rites of sepulture. Common experience tells us that these results are calculated to fill the heart with poignant grief and sadden the life of the sufferer, and such results ought to be anticipated from a general knowledge of the human heart with its human affections. Not so, however, where the allegations, as in the instant case, show only a temporary disappointment calculated to produce regret, and perhaps resentment, toward the telegraph company for its inexcusable negligence. It is not alleged that the contemplated visit of the grandchildren was appellee's last opportunity to see them. For aught that appears to the contrary, they may have been of sufficient age to have come by themselves, had appellee sent them money with which to pay for their transportation, upon hearing that they had not come with their mother; or appellee might have visited them at an expense not exceeding that which he would have incurred had the telegram been promptly delivered. [4] In order for appellee to recover, not only must such facts be alleged as would reasonably indicate that appellee would suffer mental anguish by reason of the failure to deliver the telegram, but it must also be alleged that appellant's agent was advised of such facts, otherwise he would not be required to anticipate such result. For the reason that it does not appear from the allegations of the petition that the telegram was sent under such circumstances as reasonably required appellant to anticipate that appellee would suffer mental anguish, if such telegram was not promptly delivered, the general demurrer should have been sustained, and, for the error of the trial court in overruling the same, this cause is reversed and remanded. Reversed and remanded. GORDON v. RATLIFF et al. (No. 5292.) whether the building was constructed; nor did he allege that Gordon had converted any of the material to his own use. In submitting the cross-action to the jury the trial court instructed them, in substance, that if 1. TRIAL (§ 251*)-INSTRUCTIONS-CONFORM- they found that there was a contract between ITY TO ISSUES. In replevin, where defendant set up as a counterclaim plaintiff's breach of a construction contract, but did not allege plaintiff's conversion of material deposited on the lot where the building was to be erected, the submission to the jury of the question whether plaintiff was liable for the conversion was erroneous. (Ed. Note. For other cases, see Trial, Cent. Dig. $$ 587-595; Dec. Dig. § 251.*] 2. PLEADING (§ 127*)-CONSTRUCTION. Where plaintiff generally denied defendant's cross-petition, which though alleging defendant deposited material on plaintiff's premises did not charge a conversion, the filing of a special plea, alleging that plaintiff purchased the material, is not an admission against interest authorizing recovery by defendant for the conversion. Gordon and Coker, and that in pursuance thereof Coker delivered any of the material to Gordon on the lot where the building was to be erected, and Gordon refused to allow Coker to proceed with the construction of the building and failed and refused to comply with his contract, to find for Coker the rea sonable value of the material so furnished by him to Gordon. Error is assigned upon that portion of the charge for the reason that Coker had sued appellant for the profits he would have made if he had been permitted to perform his part of the contract, and he did not allege that Gordon had either purchased or converted any of the material which Coker had placed upon the lot, and intended to use in the construction of the building, and we sustain that assignment. The plea asserting the cross-action is as In replevin against two defendants, one of stated by counsel for appellant, and, while whom counterclaimed for breach of contract, a it alleges that Coker had delivered certain judgment for both will be reversed and remand- material to Gordon on the lot where the ed, when an improper issue on the counterclaim was submitted and the rights of the parties to building was to be constructed, it does not the goods replevined depended upon the deter- allege that Gordon promised to pay for the mination of the issues raised by the counter-material, or that he had converted it to his claim. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 264-268; Dec. Dig. § 127.*] 3. APPEAL AND Error (§ 1173*)—DETERMINA TION-REVERSAL. own use. The substance of the plea is that, Dec. for an agreed consideration of $1,000, Coker [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dig. 1173.*] was to furnish the material and construct stone walls for the building of certain diAppeal from Brown County Court; Frank mensions on a certain lot in the town of H. Sweet, Judge. Brownwood, and that, although Coker was Action by E. B. Gordon against Arch Rat-able and willing to perform his part of the liff and one Coker, who counterclaimed. From a judgment for defendants, plaintiff appeals. Reversed and remanded. W. D. Gordon and Thos. J. Baten, both of Beaumont, and I. J. Rice, of Brownwood, for appellant. Arch Grimman and Harrison & Wayman, all of Brownwood, for appellees. contract, he was prevented from doing so by Gordon, and had therefore lost the profit which he would have made, as stated in the pleading. It is true that the plea alleged that Coker had delivered certain specified material of certain specified values upon the lot where the building was to have been erected; but the allegation that it was so delivered to KEY, C. J. This is the second appeal in Gordon did not show that he had become liathis case, and we refer to our former opinion ble to pay for the value of that material. If for a statement of the nature of the suit. he was liable at all, it is for the breach of Ratliff v. Gordon, 149 S. W. 196. At the last his contract, and the measure of the plaintrial the jury found against the plaintiff, tiff's damage was the profit he would have Gordon, upon his suit to recover the wagon made if there had been no breach. Of course, and team, and found in favor of the defend- if Gordon converted to his own use any of ant, Coker, on his cross-action against the plaintiff for $451, and the plaintiff, Gordon, has appealed. the plaintiff's material which he had placed upon the lot, the plaintiff might have the right, upon a proper plea, to recover the val [1, 2] In his cross-action Coker sought to ue of the property so converted. And also a recover from Gordon the profits which he similar right would exist if any of the maalleged he would have made if he had not terial was sold to Gordon and has not been been prevented by Gordon from performing paid for. But Coker's pleading failed to alhis part of the contract between him and lege either a sale or conversion, and therefore Gordon, by which he agreed to furnish the he was not entitled to recover for the value material and construct the stone walls of a of the material; and this is especially true certain building for Gordon. He did not al- as to the 7,000 feet of lumber which he allege that he had sold any material to Gor-leged he had delivered upon the lot, and don to be paid for by the latter, regardless of which it seems was no part of the material For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes to be used by him in the construction of the walls of the building. According to the averments in his pleading, he only undertook to construct the walls, and yet he alleged and submitted testimony tending to prove that he delivered upon the lot 7,000 feet of lumber of the value of $175, but he did not allege that Gordon had ever agreed to pay him for the lumber, or that he had converted it to his own use. It is true that Gordon alleged in his answer to Coker's cross-action that he had bought from Coker all the material referred to, and had paid him for it, but he also filed a general denial, and therefore the averment referred to in his special answer cannot be considered in aid of Coker's pleading, as an admission against Gordon. Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471. This is the only reversible error pointed out in appellant's brief. No doubt Coker will replead and thereby obviate some of the objections urged against his pleading. [3] The appellee, Ratliff, insists that the case should be affirmed as between him and appellant, Gordon, even though it be reversed as between Gordon and Coker; but we are of opinion that the entire case should be reversed and sent back for another trial. The wagon and mules which Gordon sought to recover from Ratliff had been sold to the latter by Coker. Coker alleged and testified that he and Gordon had made the contract above referred to, and that Gordon had sold him the wagon and mules in part payment upon that contract. Gordon denied the existence of any such contract, and testified that he had never sold the wagon and mules to Coker, but had merely loaned them to him. Upon that vital issue the testimony was in sharp conflict, and the rights of both Ratliff and Gordon depend upon whether the contract and transactions between Gordon and Coker were as stated by Coker; and therefore we think it would be more in harmony with justice to have that issue finally tried but once, and let the rights of all the parties depend upon the result of such final trial. Reversed and remanded. that a verdict allowing him $10,000 was not excessive. Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] [Ed. Note. For other cases, see Damages, 2. TRIAL (8 256*)-INSTRUCTIONS-REQUESTED CHARGE-DUTY TO MAKE REQUEST. In general, if a party desires to have inaccuracies in instructions given cured, it is his duty to ask properly prepared special instructions for 'that purpose. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*] 3. TRIAL (§ 253*)-INSTRUCTIONS-REQUESTED CHARGE-ELIMINATION OF ISSUES. Where, in an action for injuries to a servant, plaintiff alleged negligence in the employment of incompetent fellow servants, and also in the furnishing of defective and dangerous machinery, a requested charge that plaintiff could not recover on account of his fellow servant's negligence if defendant exercised proper care in employing him, and concluding by instructing the jury that if they found the facts to be as therein recited to return a verdict for defendant, were properly refused as eliminating plaintiff's right to recover, based on the ground of defendant's furnishing defective machinery. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 4. TRIAL (§ 260*)-REQUESTED CHARGE-INSTRUCTIONS GIVEN-CONTRIBUTORY NEGLIGENCE. The court having charged that, if the jury believed from the evidence that plaintiff was negligent in going on the block of a cotton press by which he was injured, or in not acting as under all the circumstances, then he was not an ordinarily prudent person would have acted entitled to recover, other requested instructions on the issue of contributory negligence were properly refused. Dig. 88 651-659; Dec. Dig. § 260.*] [Ed. Note.-For other cases, see Trial, Cent. 5. APPEAL AND ERROR (§ 1058*)-HARMLESS ERROR-RECEPTION OF EVIDENCE - CURING ERROR. Error in excluding certain evidence is cured where the facts sought to be proved are otherwise shown before the end of the trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] Appeal from District Court, Caldwell County; F. S. Roberts, Judge. Action by Jesse Hart against the La Grange & Lockhart Compress Company. Judgment for plaintiff, and defendant appeals. Affirmed. Hunt, Myer & Teagle, of Houston, and E. B. Coopwood, of Lockhart, for appellant. Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, and Paul Kayser, of Lockhart, for appellee. KEY, C. J. We copy from appellant's brief the following concededly correct statement of the nature and result of this suit: "This is an action by Jesse Hart to recover damages for personal injuries sustained by having his feet crushed in a cotton press on the 11th day of August, 1913. Plaintiff based his action on the negligence of a fellow servant in turning on the steam which operated said press while the plaintiff was standing on the lower platform thereof; he also alleged that the press was weak and defective, and that the servant Plaintiff's feet were caught in a cotton press and crushed in such a manner as to render him a cripple for life. It was necessary to amputate both feet at the junction of the instep with the heel, and one of plaintiff's physicians testified that he would never be able to walk without crutches. He was about 43 years old at the time of the accident, in good health, industrious, of good character, and able to get manual labor at good wages, and was qualified for no other character of employment. Held, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes † Application for writ of error pending in Supreme Court. |