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GOVERNS

SUIT

ON

INTERSTATE

MESSAGE

Epley and a nephew of the deceased underWESTERN UNION TELEGRAPH CO. V. took to notify the relatives of that fact. Soon EPLEY. (No. 2204.)

after the accident, they sent a message to (Court of Civil Appeals of Texas. Texarkana. Ruth Hughes, a daughter of the deceased liv. Jan. 22, 1920.)

ing in Oklahoma. That message was written

out, presumably, on one of the telegraph 1. TELEGRAPHS AND TELEPHONES E27-MEN- blanks by Frank Edwards, a son of the de

TAL ANGUISH LAW OF STATE WHERE MESSAGE ceased. It was then. determined by Frank ORIGINATES GOVERNS RECOVERY.

and J. G. Edwards to also notify Mrs. Epley In suits based upon interstate messages, and another relative by telegraph; but, on laws of the state where the message originates must determine whether mental anguish alone account of the press for time, they requested can be regarded as an element of actual dam- the agent of the appellant at Newark to dupliages.

cate the language of the message to Ruth

Hughes and send it to Mrs. Epley at Tex2. TELEGRAPHS TELEPHONES 27

arkana, Tex. It is alleged that the agent MENTAL ANGUISH DOCTRINE OF ARKANSAS COURTS FOLLOWING FEDERAL SUPREME COUBT agreed to do this, and that the price of

the two messages he was to send was paid. WHERE MISCONDUCT OCCURRED THERE.

The facts show that the message was never The right of recovery for mental anguish, sent and Mrs. Epley received no notification due to failure of defendant's agent in Arkansas of her brother's death till some time after he to send death message to plaintiff in Texas had been buried. She brings this suit to remust be referred to the Arkansas statutes cover damages for the mental anguish suf(Kirby's Dig. $ 7947), as construed by the fered by her because of not being able to courts of that state, and, since the Arkansas attend her brother's funeral. J. G. and Frank courts following the federal Supreme Court would deny recovery in suit for damages for Edwards both testify, in substance, to the mental, anguish alone, there can be no recovery facts above stated. The appellant filed a in the Texas courts.

general demurrer, a general denial, and other

special defenses not necessary to here discuss. 3. COURTS Om 8-STATUTES HAVE NO EXTRA- A trial before a jury resulted in a verdict in TERRITORIAL EFFECT.

favor of the plaintiff for $500. The statutes of a state have no effect be

Among the errors assigned in this appeal yond its own limits.

is the refusal of the court to give a peremp4. COURTS Om511-COMITY GIVES RIGHT TO EN- tory instruction in favor of the defendant, and

FORCE TRANSACTION OCCURRING IN ANOTHER that is the only assignment which we deem STATE.

it necessary to discuss. Both the pleadings It is only by virtue of the principle of comi- and the evidence show that this was an inty that the plaintiff can ask the courts of Tex- terstate contract and that the misconduct as to enforce a transitory action which occur-complained of occurred in the state of Arred in Arkansas.

kansas, the place from which the message 5. COURTS Om97(5) · DECISION OF FEDERAL was to be sent. The question before us is: COURT AS RESPECTS DAMAGES FOR FAILURE TO Do the facts show any right in the appellee

to recover the damages sued for?

[1, 2] The decisions of this state have If the Supreme Court of the United States may entertain jurisdiction of action for damag- established the rule that, in suits based upon es for mental anguish, due to failure to send interstate messages, the laws of the state interstate message, the rule adopted by that where the message originates must determine court for determining the measure of damages whether or not mental anguish alone can be is binding upon the courts of Texas.

regarded as an element of actual damages.

W. U. Tel. Co. v. Bailey, 108 Tex. 430, 196 Appeal from District Court, Bowie County; S. W. 516, and the cases there cited. In 1903 H. F. O'Neal, Judge.

the Legislature of Arkansas enacted the folAction by A. Epley against the Western lowing statute: Union Telegraph Company. Judgment for "All telegraph companies doing business in plaintiff, and defendant appeals. Reversed this state shall be liable in damages for mental and rendered.

anguish or suffering, even in the absence of

bodily injury or pecuniary loss, for negligence Francis R. Stark, of New York City, and in receiving, transmitting or delivering mesChas. S. Todd, of Texarkana, for appellant. sages; and in all actions under this section the

Mahaffey, Keeney & Dalby, of Texarkana, jury may award such damages as they conclude for appellee.

resulted from the negligence of the said tele

graph company.” Kirby's Dig. $ 7947. HODGES, J. On or about the 7th of Au Prior to the enactment of that law, the gust, 1916, Willie Edwards, a brother of Mrs. courts of Arkansas had refused to adopt what Epley, the wife of the appellee, was drowned is commonly called the "mental anguish doe near Newark, Ark. Another brother of Mrs. I trine." See Peay v. W. U. Tel. Co., 64 Ark.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MESSAGE

BINDING

ON

SEND INTERSTATE
STATE COURTS.

(218 S. W.) 538, 43 S. W. 965, 39 L. R. A. 463. After suit can ask the courts of this state to enforce the passage of that law, the courts of Arkan-a transitory action which occurred in Arkansas allowed a recovery for mental anguish sas. His right of recovery must be given by in all cases where the misconduct causing the the laws of the state where the contract was damages occurred in that state, regardless made or the tort committed. C., R. I. & P. Ry. of the laws of the state from which the mes- Co. v. Thompson, 100 Tex. 187, 97 S. W. 459, sage came. W. U. Tel. Co. v. Ford, 77 Ark. 7 L. R. A. (N. S.) 191, 123 Am. St. Rep. 798; 531, 92 S. W. 528. That rule continued to be Willis v. Ry. Co., 61 Tex. 432. It is imenforced in Arkansas till the publication of the material whether we treat the misconduct decision of the Supreme Court of the United here complained of as a breach of a contract States in W. U. Tel. Co. v. Brown, 234 U. S. 542, or as a tort; the right to recover damages 34 Sup. Ct. 955, 58 L. Ed. 1457. Construing the therefore must be determined by the laws of decision rendered in that case as furnishing Arkansas. If the highest court of that state the rule for determining the measure of dam- has decided that the Arkansas statute, to ages in all suits upon interstate messages, the which liability must be referred, has no apSupreme Court of Arkansas refused to apply plication to interstate messages, that decision its statute controversies based upon that should preclude a contrary holding by the class of telegrams. W. U. Tel. Co. v. Johnson, courts of this state. Shelton v. Marshall, 16 115 Ark. 564, 171 S. W. 859; W. U. Tel. Co. Tex. 344; Powell v. De Blane, 23 Tex. 76. v. Compton, 114 Ark. 193, 169 S. W. 946; W. It is insisted that the ruling of this court U. Tel. Co. v. Culpepper, 120 Ark. 319, 179 S. in Tel. Co. v. Brown, 202 S. W. 1049, is in W. 494. It is apparently conceded that if this conflict with the conclusion above announced. suit had been brought in Arkansas, under the In that case the message originated in Alarule now in force in that state, there could be bama, but the negligence which formed the no recovery for mental anguish; and, since basis of the suit occurred in Texas. The Alathat is the only damage claimed, there would bama courts, in construing the common law, have been a judgment in favor of the tele- have recognized mental anguish as a proper graph company. In the last case above re- element of actual damages in cases of this ferred to the Supreme Court of Arkansas used character; there being no local statute on this language:

the subject. But in W. U. Tel. Co. y. Haw. “We have held that an action for mental an- kins, decided in 1917 and reported in 198 Ala. guish will not lie under our statute for negli- 682, 73 South. 973, the Supreme Court of that gence in the transmission or delivery of an in- state held that Congress by the act of 1910 terstate message.”

(Act June 18, 1910, C. 309, 36 Stat. 539)

had assumed exclusive control over the matAnd a judgment was rendered reversing ter of regulating interstate messages, and reand dismissing a case in which the plaintiff fused to any longer apply its local construcin the suit had recovered damages for mental tion of the common law to suits growing out anguish. The right to recover in Arkansas of interstate messages. In the Brown Case, for mental suffering in suits of this character decided by this court, it was held that since is the creature of the statute previously the decision of the Supreme Court of Alabama quoted. We now have before us a case in in the case referred to was based, not upon which the contract to carry the message, its construction of the common law or any according to the plaintiff's averments and the Alabama statute, but upon the construction proof, was made in Arkansas, and the mis- of a federal statute as to its scope and effect conduct which caused the injury occurred in in regulating interstate commerce, the courts that state. Whether we treat that miscon- of other states were not bound to follow that duct as a common-law tort or as the breach of ruling in applying the measure of damages a contract to transmit and deliver the mes- in such cases. It is true that the result of sage, liability on the part of the telegraph the decisions in the Arkansas cases previouscompany, if there is any, must be referred to ly cited are also controlled by the construction the Arkansas statute. The question then is: placed by the Arkansas Supreme Court upon Shall the courts of Texas grant the plaintiff the same federal statute, but the effect of à recovery which the courts of Arkansas that construction in Arkansas is to expressly would deny?

limit the operation of a statute of that state, [3, 4] The statutes of a state have no effect whereas in the Alabama case it did not affect beyond its own limits; and, if the act or omis- the construction which that court put upon sion complained of be not actionable by the any local statute. However, if this case canlaw of the state where it was committed, no not be distinguished in principle from the action can properly be brought on it in Brown Case to which we have just referred, another state, although by the laws of the lat we nevertheless think our present conclusion ter the act or omission would have been ac- the correct one. In a recent case (Postal Tel. & tionable if committed within its jurisdiction. Cable Co. v. Warren & Godwin Lbr. Co., 251 De Harn v. Mexican Nat. Ry. Co., 86 Tex. 68, U. S. 27, 40 Sup. Ct. 69, 64 L. Ed. -) the 23 S. W. 381. It is only by virtue of the Supreme Court of the United States cites principle of comity that the plaintiff in this with approval the ruling of the Alabama

218 S.W.-34

Supreme Court in the Hawkins Case and a | 149 by 148.7 feet lying on the west side of number of other cases of similar import which North Spring street, and is a part of a twohave held that by the amendment of 1910 Con- acre tract extending from North Spring gress has assumed the exclusive right of regu- street west to North Broad street, and which lating this character of interstate commerce. formerly belonged to the estate of T. P. Under the rule adopted in W. U. Tel. Co. v. Smith, deceased. Smith died in January, Brown, decided by the Supreme Court of the 1900, and left a will in which he bequeathed United States, and which has heretofore been his entire property to his wife for life, giving referred to, that court appears to regard negli- her the unrestricted power to dispose of any gence in failing to deliver a telegraphic mes or all of it at her discretion. The will also sage as a tort to be governed by the law of the provided that one-half of the property replace where the offense was committed. maining undisposed of at the time of the

[5] It follows, we think, that if the Supreme wife's death was to go to the testator's Court of the United States may entertain heirs then living; the remainder was de jurisdiction of this controversy because of the vised to the heirs of the wife. See Craig v. character of the contract, the rule adopted by McFadden et al., 191 S. W. 203, where this that court for determining the measure of will was construed. The widow of T. P. damages is binding upon this court. On the Smith was named as executor without bond. other hand, if the measure of damages is to She acted in that capacity up to the time of be governed by the law of the state in which her death, which occurred in the latter part the message originated and where the mis- of 1914. At the time of Smith's death his conduct occurred, it is equally clear, we think, real estate consisted of two brick storehouses that the plaintiff in this suit is not authorized in Pittsburg, Tex., one house and lot in Yarto recover.

borough's addition to the city of Tyler, the The judgment will therefore be reversed, Sharp place in the Jones addition, that city, and judgment here rendered in favor of the and one house and lot on North Broad street, appellant.

the north half of the east half of which is now in controversy; also one 8-acre tract of land and a 13-acre tract of land in the city of

Tyler. At the time the will was made there SHEGOG v. CRAIG et al. (No. 2207.)

was a house on the west end fronting on

North Broad street on the lot in controversy. (Court of Civil Appeals of Texas. Texarkana. In 1907 Mrs. Mary Belle Smith, the widow Jan. 15, 1920.)

of T. P. Smith, sold the west half of that lot,

which included the house. There were three MOBTGAGES Om 48(2)—LAND COVERED BY MORT

residences situated on the lots in the Yar. EMBRACED

DESCRIPTION PRIOR MORTGAGE,

borough and the Jones additions to the city GENERAL WORDS BEING LIMITED TO PARTICULAR LAND MENTIONED. of Tyler. The 8-acre tract was unimproved.

The undivided interest referred to in a Mrs. Lelia Craig was one of the heirs of T. mortgage of "the following land in T., and be- P. Smith. On March 15, 1914, Mrs. Craig, ing the undivided interest owned by C., in joined by her husband, J. W. Craig, executed

. the estate of S.; said land consisting and delivered to the appellant, Shegog, their of three residences

and one 12-acre tract and one 8-acre tract,” is limited to the promissory note for the sum of $580 due in particular lands mentioned; and there is not instailments thereafter. To secure the pay. embraced in the description a lot, subsequent- ment of that indebtedness Craig and wife ly mortgaged to another, on which was neither gave a deed of trust, which contained the of the three houses, and which was part of following description of the property: neither of two tracts, though part of S.'s estate, in which C. had an undivided interest. "All that certain lot, tract and parcel of real

estate lying and situated in the counties of Appeal from District Court, Smith County: Smith and Cass, to wit, being two hundred and J. R. Warren, Judge.

sixty-five (265) acres of land near the town of

Troup in Smith county, Texas, and being out of Action by R. B. Long against Mrs. Lelia the James Noblitt survey, and the land owned Craig and others. From an adverse judg- and claimed' by said Lelia Craig as heir at law ment, defendant J. D. Shegog appeals. Af- of her father Samuel Smith, deceased, a bet. firmed.

ter description of same being at this time not

available; also the following land situated in Johnson & Edwards, of Tyler, for appel- the town of Tyler, Smith County, Texas, and lant.

being the undivided interest owned by said Marsh & McIlwaine, of Tyler, for appellee. Lelia Craig in and to the estate of Thomas P.

Smith, deceased, said land consisting of three

residences in said town of Tyler and one 12HODGES, J. This appeal presents a con

acre tract and one 8-acre tract; also two brick test between two lienholders, each claiming store buildings situated in the town of Pittspriority in the foreclosure proceedings. The burg in Cass county, Texas, out of said estate. land involved is a lot in the city of Tyler | A full description of the foregoing tracts and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

GAGE

NOT

IN

OF

(218 S.W.) lots not being at this time available, it is un an inventory of the estate of T, P. Smith then derstood and agreed that said Shegog may at remaining a certain amount of cash, houseany time desired attach the same to this instru- hold goods, and the following described real ment, and when done it shall be considered a part of the same; it being also understood that property: The east half of lot 5 in Yarthe interest in and to the estate

of T. P. Smith borough's addition to the city of Tyler; lots is subject to the life interest of Mrs. Mary 4, 5, and 6 in the Jones addition, 8 acres of Belle Smith, widow of said Thomas P. Smith, land (a part of the Jones survey) in the city deceased.”

of Tyler, and a lot abutting on the west side

of Spring street, which is the lot of which That instrument was filed for record in the land in controversy is a part. At the due time in the office of the county clerk time of Mrs. Smith's death, and for several of Smith county. On October 15, 1914, Craig years prior thereto, there were belonging to and wife became indebted to the appellee R. the T. P. Smith estate three residence houses B. Long in the sum of $500. To secure that located in the city of Tyler, one being on indebtedness they executed to Long a deed lot 5 in the Yarborough addition. The 8of trust containing the following description: acre tract was unimproved, and so was the

"All the right, title and interest of the gran- other property referred to. Some tim after tor, Lelia Craig, in and to the estate of Tbos. the death of Mrs. Mary Belle Smith a parti. P. Smith, deceased; the interest here convey- tion was made, and the north half of the ed being all the interest in the real and per- property remaining on the west side of North sonal property inherited by the said Lelia Spring street was allotted to Mrs. Craig as Craig from her uncle Thos. P. Smith, deceased, her interest in the estate of T. P. Smith. under the will of said Smith probated in the county court of Smith county, Texas, on the Soon after that partition Mrs. Craig and her 27th day of July, 1900."

husband executed an instrument containing

an accurate description of that property, This instrument was promptly fled for and delivered it to the appellant Shegog to be record. In September, 1918, Long filed this attached to his mortgage for the purpose of suit against Craig and wife to recover his describing the property to which his lien debt and to foreclose his mortgage on the lot should attach. The court found as a fact described in his petition as abutting on the that at the time the deed of trust was exwest side of North Spring street in the city ecuted by Craig and wife to Shegog it was of Tyler 149 by 148.7 feet. Shegog and others the intention of the parties to incumber the were made parties defendant upon the entire interest that Mrs. Craig had in the real ground that they were claiming liens against property acquired by her under the will of the same property. The controversy finally T. P. Smith. He also found that the same narrowed to one between Long and Shegog, intention existed when the deed of trust was each of whom claimed that he was entitled executed some time later to the appellee to priority in the foreclosure of his lien. Long. In his conclusions of law the court The case was tried before the court without makes the following statement: a jury, and a judgment rendered in favor of

"The terms of the defendant Shegog's said Long as a prior lienholder, but also allowing mortgage and its description of the land covera foreclosure in favor of Shegog subordinate ed by said mortgage as therein set forth did to that of Long. Shegog has appealed. The not include the land in controversy, and could court filed findings of fact and conclusions of not be held as constructive notice to R. B. Long law. There is no statement of facts in the at the time the mortgage to R. B. Long was record, According to the findings, at the

executed. Therefore plaintiff R. B. Long's said time these mortgages were executed Mrs. scribed in the original petition is superior to

mortgage lien on the north half of the land deMary Belle Smith, the surviving widow of the mortgage lien claimed by the defendant T. P. Smith, was still living. In the ex. Shegog upon said land, and the said lien of ercise of her right to dispose of any or all the plaintiff Long should be first satisfied from of the property, she had sold the west half the proceeds of said land in preference to the of the 2-acre lot, of which the land in con- claim of the defendant Shegog." troversy .was a part. The land sold included the house situated thereon. At the time It is contended on this appeal that the Shegog's mortgage was taken the portion court erroneously construed the terms of the of the lot remaining as a part of the T. P. description in the mortgage executed to Smith estate had no residence on it, and was Shegog, and that his finding that it was the not within the terms of the description. It intention of the parties to incumber Mrs. further appears from the court's findings that Craig's entire interest in the real estate she when these mortgages were executed there acquired under the will of T. P. Smith is had been no partition among the heirs of T. inconsistent with the legal conclusion anP. Smith. That did not occur until after the nounced by the court. There being no statedeath of Mrs. Mary Belle Smith, in Septem- ment of facts, we are unable to determine ber, 1914. After her death R. B. Long was upon what the court bases his conclusion appointed administrator de bonis non with as to the intention of the parties at the time the will annexed, and he returned into court Shegog's mortgage was executed. It is clear,

we think, from the reading of the mortgage, 1 bed, evidence held to support a finding of neglithat the land in controversy was not includ- gence by the jury. ed in the description. The appropriate part of that description is as follows:

Appeal from District Court, Harrison

County; P. O. Beard, Judge. “Also the following land situated in the town of Tyler, Smith county, Texas, and being Action by R. A. Bell against Pearl Wight, undivided interest owned by said Lelia Craig in receiver and others. Judgment for plaintiff, and to the estate of Thos. P. Smith, deceased; and defendants appeal. Affirmed. said land consisting of three residences in said town of Tyler and one 12-acre tract and one

The appellee was a locomotive engineer 8-acre tract."

operating the regular passenger train on the

Texas & Pacific Railway from Marshall, Tex., At the time that description was written to Boyce, La. The passenger train was apthe terms of that mortgage could have been proaching Shreveport, La., at 5 o'clock a. m. satisfied without reference to the land in on January 24, 1918, when the engine sudcontroversy. None of these three residences denly derailed, causing appellee to be severely was situated on the lot in controversy, nor injured. The appellee sued for damages, was it a part of the 12-acre tract or the 8-acre claiming that the derailment was caused by tract above referred to. It is evident that negligence by reason of (1) the insufficient the undivided interest referred to in the roadbed and support under the rails, and (2) above description by the terms of the deed of the ties in the track not having sufficient bal. trust was limited to the particular land men- last under them. The defendant answered tioned in that paragraph.

by general denial, and pleaded that the deWe are of the opinion that the court's con- railment was an accident and was not occlusion was correct. He may have been in casioned by negligence, but was one of the error in concluding also that it was the in- ordinary risks assumed by the plaintiff in tention of the parties at the time Shegog's his employment. The jury rendered a vermortgage was executed to incumber the en- dict in favor of the plaintiff. At Shreveport, tire interest of Mrs. Craig in the estate of La., the track runs north and south, and the T. P. Smith. If that was error, no complaint Kansas City Southern Railway crosses it at of it has been made on this appeal, and we right angles, or east and west. The union are not called upon to reconcile that conclu- passenger station at Shreveport, La., is on sion with the other conclusion sustained. the main line of the Kansas City Southern There may have been extraneous facts pre- Railway. The Texas & Pacific Railway train sented upon the trial on which he based that goes in on the Kansas City Southern on a conclusion. Possibly the filing of a specific “Y,” which is a track of about 18 degrees description of the land with Shegog by Craig curve, and then backs into the union station and wife after the partition had been made, on the Kansas City Southern track. On this which included the land in controversy, may connecting track of the Texas & Pacific Railhave been considered a material fact in de way, and just about the apex of the curve, termining the intention of the parties. Since the engine was derailed. The train was goMrs. Craig and her husband and no other ing at a speed of about six or seven miles an creditor authorized to do so questions the hour at the time of the derailment. The eviconstruction of that transaction by the court, dence showed that on the day before the dewe are not required to examine it.

railment the trackmen changed the particular We are of the opinion that there is nothing piece of track in question some three feet outin the record which would justify a reversal ward from where it was formerly located on of this judgment, and it is accordingly af- the ground. The dump or embankment under firmed.

the new track was mostly made five or six months before this date. There was a newly made dump or embankment. The situation

is clearly explained in the evidence of the WIGHT et al. v. BELL. (No. 2193.)

section foreman: (Court of Civil Appeals of Texas. Texarkana. ditch some time before the wreck, and then we

“The dump was made to extend towards the Jan. 19, 1920. Rehearing Denied Jan. 22, 1920.)

made the change in the track a day or two

before the wreck. When we changed the track, 1. TRIAL C260(1)-REPETITION OF INSTRUC

we moved it a foot over on the part of the TIONS UNNECESSARY.

dump that had been newly made, and then Refusal to give special charge substantially raised it five or six inches and made the outside embraced in the court's charge was not error.

the proper elevation. Ballast was put there,

and then cinders tamped under the ties." 2. MASTER AND SERVANT Om 278(7)–FINDING OF NEGLIGENCE CAUSING DERAILMENT WAR

Cinders had been tamped under the ties,

but no cinders or dirt was put in between. In an action by a locomotive engineer for There is evidence that the track reached to injuries in a derailment on a newly made road- | about the edge of the new embankment and

RANTED BY PROOF.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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