WESTERN UNION TELEGRAPH CO. v. (Court of Civil Appeals of Texas. Texarkana. 1. TELEGRAPHS AND TELEPHONES 27-MENTAL ANGUISH LAW OF STATE WHERE MESSAGE ORIGINATES GOVERNS RECOVERY. In suits based upon interstate messages, laws of the state where the message originates must determine whether mental anguish alone can be regarded as an element of actual dam ages. 2. TELEGRAPHS AND TELEPHONES pmm 27 MENTAL ANGUISH DOCTRINE OF ARKANSAS Epley and a nephew of the deceased undertook to notify the relatives of that fact. Soon after the accident, they sent a message to Ruth Hughes, a daughter of the deceased living in Oklahoma. That message was written out, presumably, on one of the telegraph blanks by Frank Edwards, a son of the deceased. It was then. determined by Frank and J. G. Edwards to also notify Mrs. Epley and another relative by telegraph; but, on account of the press for time, they requested the agent of the appellant at Newark to duplicate the language of the message to Ruth Hughes and send it to Mrs. Epley at Texarkana, Tex. It is alleged that the agent COURTS FOLLOWING FEDERAL SUPREME COURT agreed to do this, and that the price of the two messages he was to send was paid. The facts show that the message was never sent and Mrs. Epley received no notification of her brother's death till some time after he had been buried. She brings this suit to recover damages for the mental anguish suffered by her because of not being able to attend her brother's funeral. J. G. and Frank Edwards both testify, in substance, to the The appellant filed a general demurrer, a general denial, and other special defenses not necessary to here discuss. facts above stated. 3. COURTS 8-STATUTES HAVE NO EXTRA-A trial before a jury resulted in a verdict in TERRITORIAL EFFECT. The statutes of a state have no effect beyond its own limits. STATE. favor of the plaintiff for $500. Among the errors assigned in this appeal is the refusal of the court to give a peremp 4. COURTS511-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 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 Arkansas, the place from which the message was to be sent. The question before us is: Do the facts show any right in the appellee to recover the damages sued for? red in Arkansas. 5. COURTS 97(5) DECISION OF FEDERAL SEND INTERSTATE MESSAGE BINDING ON If the Supreme Court of the United States may entertain jurisdiction of action for damages for mental anguish, due to failure to send interstate message, the rule adopted by that court for determining the measure of damages is binding upon the courts of Texas. established the rule that, in suits based upon [1, 2] The decisions of this state have interstate messages, the laws of the state where the message originates must determine whether or not mental anguish alone can be 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 following statute: Action by A. Epley against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. Francis R. Stark, of New York City, and Chas. S. Todd, of Texarkana, for appellant. Mahaffey, Keeney & Dalby, of Texarkana, for appellee. HODGES, J. On or about the 7th of August, 1916, Willie Edwards, a brother of Mrs. Epley, the wife of the appellee, was drowned near Newark, Ark. Another brother of Mrs. "All telegraph companies doing business in this state shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company." Kirby's Dig. § 7947. Prior to the enactment of that law, the courts of Arkansas had refused to adopt what is commonly called the "mental anguish doctrine." 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 (218 S.W.) sas. His right of recovery must be given by the laws of the state where the contract was made or the tort committed. C., R. I. & P. Ry. Co. v. Thompson, 100 Tex. 187, 97 S. W. 459, 7 L. R. A. (N. S.) 191, 123 Am. St. Rep. 798; Willis v. Ry. Co., 61 Tex. 432. It is immaterial whether we treat the misconduct here complained of as a breach of a contract or as a tort; the right to recover damages therefore must be determined by the laws of Arkansas. If the highest court of that state has decided that the Arkansas statute, to which liability must be referred, has no application to interstate messages, that decision should preclude a contrary holding by the courts of this state. Shelton v. Marshall, 16 Tex. 344; Powell v. De Blane, 23 Tex. 76. 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 in all cases where the misconduct causing the damages occurred in that state, regardless of the laws of the state from which the message came. W. U. Tel. Co. v. Ford, 77 Ark. 531, 92 S. W. 528. That rule continued to be enforced in Arkansas till the publication of the decision of the Supreme Court of the United States in W. U. Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. Construing the decision rendered in that case as furnishing the rule for determining the measure of damages in all suits upon interstate messages, the Supreme Court of Arkansas refused to apply its statute in controversies based upon that class of telegrams. W. U. Tel. Co. v. Johnson, 115 Ark. 564, 171 S. W. 859; W. U. Tel. Co. 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: "We have held that an action for mental anguish will not lie under our statute for negligence in the transmission or delivery of an interstate message." And a judgment was rendered reversing and dismissing a case in which the plaintiff in the suit had recovered damages for mental anguish. The right to recover in Arkansas for mental suffering in suits of this character is the creature of the statute previously quoted. We now have before us a case in which the contract to carry the message, according to the plaintiff's averments and the proof, was made in Arkansas, and the misconduct which caused the injury occurred in that state. Whether we treat that misconduct as a common-law tort or as the breach of a contract to transmit and deliver the message, liability on the part of the telegraph company, if there is any, must be referred to the Arkansas statute. The question then is: Shall the courts of Texas grant the plaintiff a recovery which the courts of Arkansas would deny? [3, 4] The statutes of a state have no effect beyond its own limits; and, if the act or omission complained of be not actionable by the law of the state where it was committed, no action can properly be brought on it in another state, although by the laws of the latter the act or omission would have been actionable if committed within its jurisdiction. De Harn v. Mexican Nat. Ry. Co., 86 Tex. 68, 23 S. W. 381. It is only by virtue of the principle of comity that the plaintiff in this 218 S.W.-34 the subject. But in W. U. Tel. Co. v. Hawkins, decided in 1917 and reported in 198 Ala. 682, 73 South, 973, the Supreme Court of that state held that Congress by the act of 1910 (Act June 18, 1910, c. 309, 36 Stat. 539) had assumed exclusive control over the matter of regulating interstate messages, and refused to any longer apply its local construction of the common law to suits growing out of interstate messages. In the Brown Case, decided by this court, it was held that since the decision of the Supreme Court of Alabama in the case referred to was based, not upon its construction of the common law or any Alabama statute, but upon the construction of a federal statute as to its scope and effect in regulating interstate commerce, the courts of other states were not bound to follow that ruling in applying the measure of damages in such cases. It is true that the result of the decisions in the Arkansas cases previously cited are also controlled by the construction placed by the Arkansas Supreme Court upon the same federal statute, but the effect of that construction in Arkansas is to expressly limit the operation of a statute of that state, whereas in the Alabama case it did not affect the construction which that court put upon any local statute. However, if this case cannot be distinguished in principle from the Brown Case to which we have just referred, we nevertheless think our present conclusion the correct one. In a recent case (Postal Tel. & Cable Co. v. Warren & Godwin Lbr. Co., 251 U. S. 27, 40 Sup. Ct. 69, 64 L. Ed.) the Supreme Court of the United States cites with approval the ruling of the Alabama 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 wife's death was to go to the testator's heirs then living; the remainder was de vised to the heirs of the wife. See Craig v. McFadden et al., 191 S. W. 203, where this will was construed. The widow of T. P. Smith was named as executor without bond. She acted in that capacity up to the time of her death, which occurred in the latter part of 1914. At the time of Smith's death his real estate consisted of two brick storehouses in Pittsburg, Tex., one house and lot in Yarborough's addition to the city of Tyler, the Sharp place in the Jones addition, that city, and one house and lot on North Broad street, 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 was a house on the west end fronting on North Broad street on the lot in controversy. [5] It follows, we think, that if the Supreme Court of the United States may entertain jurisdiction of this controversy because of the character of the contract, the rule adopted by that court for determining the measure of damages is binding upon this court. On the other hand, if the measure of damages is to be governed by the law of the state in which the message originated and where the misconduct occurred, it is equally clear, we think, that the plaintiff in this suit is not authorized to recover. The judgment will therefore be reversed, and judgment here rendered in favor of the appellant. SHEGOG v. CRAIG et al. (No. 2207.) (Court of Civil Appeals of Texas. Texarkana. In 1907 Mrs. Mary Belle Smith, the widow MORTGAGES Jan. 15, 1920.) 48(2)—LAND COVERED BY MORTGAGE NOT EMBRACED IN DESCRIPTION OF PRIOR MORTGAGE, GENERAL WORDS BEING LIMITED TO PARTICULAR LAND MENTIONED. The undivided interest referred to in a mortgage of "the following land in T., and being the undivided interest owned by C., in the estate of S.; said land consisting of three residences * * * and one 12-acre tract and one 8-acre tract," is limited to the particular lands mentioned; and there is not embraced in the description a lot, subsequently mortgaged to another, on which was neither of the three houses, and which was part of neither of two tracts, though part of S.'s estate, in which C. had an undivided interest. of T. P. Smith, sold the west half of that lot, which included the house. There were three residences situated on the lots in the Yarborough and the Jones additions to the city of Tyler. The 8-acre tract was unimproved. Mrs. Lelia Craig was one of the heirs of T. P. Smith. On March 15, 1914, Mrs. Craig, joined by her husband, J. W. Craig, executed and delivered to the appellant, Shegog, their promissory note for the sum of $580 due in installments thereafter. To secure the payment of that indebtedness Craig and wife gave a deed of trust, which contained the following description of the property: "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. Action by R. B. Long against Mrs. Lelia Craig and others. From an adverse judgment, defendant J. D. Shegog appeals. Affirmed. Johnson & Edwards, of Tyler, for appel sixty-five (265) acres of land near the town of Troup in Smith county, Texas, and being out of the James Noblitt survey, and the land owned and claimed by said Lelia Craig as heir at law of her father Samuel Smith, deceased, a better description of same being at this time not available; also the following land situated in the town of Tyler, Smith County, Texas, and being the undivided interest owned by said 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 conacre tract and one S-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 lant. Marsh & McIlwaine, of Tyler, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) lots not being at this time available, it is understood and agreed that said Shegog may at any time desired attach the same to this instrument, and when done it shall be considered a part of the same; it being also understood that the interest in and to the estate of T. P. Smith is subject to the life interest of Mrs. Mary Belle Smith, widow of said Thomas P. Smith, deceased." That instrument was filed for record in due time in the office of the county clerk of Smith county. On October 15, 1914, Craig and wife became indebted to the appellee R. B. Long in the sum of $500. To secure that indebtedness they executed to Long a deed of trust containing the following description: "All the right, title and interest of the grantor, Lelia Craig, in and to the estate of Thos. P. Smith, deceased; the interest here conveyed being all the interest in the real and personal property inherited by the said Lelia Craig from her uncle Thos. P. Smith, deceased, under the will of said Smith probated in the county court of Smith county, Texas, on the 27th day of July, 1900." This instrument was promptly filed for record. In September, 1918, Long filed this suit against Craig and wife to recover his debt and to foreclose his mortgage on the lot described in his petition as abutting on the west side of North Spring street in the city of Tyler 149 by 148.7 feet. Shegog and others were made parties defendant upon the ground that they were claiming liens against the same property. The controversy finally narrowed to one between Long and Shegog, each of whom claimed that he was entitled to priority in the foreclosure of his lien. The case was tried before the court without a jury, and a judgment rendered in favor of Long as a prior lienholder, but also allowing a foreclosure in favor of Shegog subordinate to that of Long. Shegog has appealed. The court filed findings of fact and conclusions of law. There is no statement of facts in the record. According to the findings, at the time these mortgages were executed Mrs. Mary Belle Smith, the surviving widow of T. P. Smith, was still living. In the exercise of her right to dispose of any or all of the property, she had sold the west half of the 2-acre lot, of which the land in controversy was a part. The land sold included the house situated thereon. At the time Shegog's mortgage was taken the portion of the lot remaining as a part of the T. P. Smith estate had no residence on it, and was not within the terms of the description. It further appears from the court's findings that when these mortgages were executed there had been no partition among the heirs of T. P. Smith. That did not occur until after the death of Mrs. Mary Belle Smith, in September, 1914. After her death R. B. Long was appointed administrator de bonis non with the will annexed, and he returned into court an inventory of the estate of T. P. Smith then remaining a certain amount of cash, household goods, and the following described real property: The east half of lot 5 in Yarborough's addition to the city of Tyler, lots 4, 5, and 6 in the Jones addition, 8 acres of land (a part of the Jones survey) in the city of Tyler, and a lot abutting on the west side of Spring street, which is the lot of which the land in controversy is a part. At the time of Mrs. Smith's death, and for several years prior thereto, there were belonging to the T. P. Smith estate three residence houses located in the city of Tyler, one being on lot 5 in the Yarborough addition. The 8acre tract was unimproved, and so was the other property referred to. Some time after the death of Mrs. Mary Belle Smith a partition was made, and the north half of the property remaining on the west side of North Spring street was allotted to Mrs. Craig as her interest in the estate of T. P. Smith, Soon after that partition Mrs. Craig and her husband executed an instrument containing an accurate description of that property, and delivered it to the appellant Shegog to be attached to his mortgage for the purpose of describing the property to which his lien should attach. The court found as a fact that at the time the deed of trust was executed by Craig and wife to Shegog it was the intention of the parties to incumber the entire interest that Mrs. Craig had in the real property acquired by her under the will of T. P. Smith. He also found that the same intention existed when the deed of trust was executed some time later to the appellee Long. In his conclusions of law the court makes the following statement: "The terms of the defendant Shegog's said mortgage and its description of the land covered by said mortgage as therein set forth did not include the land in controversy, and could not be held as constructive notice to R. B. Long at the time the mortgage to R. B. Long was executed. Therefore plaintiff R. B. Long's said mortgage lien on the north half of the land described in the original petition is superior to the mortgage lien claimed by the defendant Shegog upon said land, and the said lien of the plaintiff Long should be first satisfied from the proceeds of said land in preference to the claim of the defendant Shegog." It is contended on this appeal that the court erroneously construed the terms of the description in the mortgage executed to Shegog, and that his finding that it was the intention of the parties to incumber Mrs. Craig's entire interest in the real estate she acquired under the will of T. P. Smith is inconsistent with the legal conclusion announced by the court. There being no statement of facts, we are unable to determine upon what the court bases his conclusion as to the intention of the parties at the time Shegog's mortgage was executed. It is clear, we think, from the reading of the mortgage, 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: "Also the following land situated in the town of Tyler, Smith county, Texas, and being the undivided interest owned by said Lelia Craig in and to the estate of Thos. P. Smith, deceased; said land consisting of three residences in said town of Tyler and one 12-acre tract and one 8-acre tract." At the time that description was written the terms of that mortgage could have been satisfied without reference to the land in controversy. None of these three residences was situated on the lot in controversy, nor was it a part of the 12-acre tract or the 8-acre tract above referred to. It is evident that the undivided interest referred to in the above description by the terms of the deed of trust was limited to the particular land mentioned in that paragraph. Appeal from District Court, Harrison County; P. O. Beard, Judge. Action by R. A. Bell against Pearl Wight, receiver and others. Judgment for plaintiff, and defendants appeal. Affirmed. The appellee was a locomotive engineer operating the regular passenger train on the Texas & Pacific Railway from Marshall, Tex., to Boyce, La. The passenger train was approaching Shreveport, La., at 5 o'clock a. m. on January 24, 1918, when the engine suddenly derailed, causing appellee to be severely injured. The appellee sued for damages, claiming that the derailment was caused by negligence by reason of (1) the insufficient roadbed and support under the rails, and (2) the ties in the track not having sufficient ballast under them. The defendant answered 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 T. P. Smith. If that was error, no complaint of it has been made on this appeal, and we are not called upon to reconcile that conclusion with the other conclusion sustained. There may have been extraneous facts presented upon the trial on which he based that conclusion. Possibly the filing of a specific description of the land with Shegog by Craig and wife after the partition had been made, which included the land in controversy, may have been considered a material fact in determining the intention of the parties. Since Mrs. Craig and her husband and no other creditor authorized to do so questions the construction of that transaction by the court, we are not required to examine it. We are of the opinion that there is nothing in the record which would justify a reversal of this judgment, and it is accordingly affirmed. WIGHT et al. v. BELL. (No. 2193.) 1. TRIAL 260(1)—REPETITION OF INSTRUC- Refusal to give special charge substantially embraced in the court's charge was not error. 2. MASTER AND SERVANT 278(7)-FINDING OF NEGLIGENCE CAUSING DERAILMENT WARRANTED BY PROOF. La., the track runs north and south, and the Kansas City Southern Railway crosses it at right angles, or east and west. The union passenger station at Shreveport, La., is on the main line of the Kansas City Southern Railway. The Texas & Pacific Railway train goes in on the Kansas City Southern on a "Y," which is a track of about 18 degrees curve, and then backs into the union station on the Kansas City Southern track. On this connecting track of the Texas & Pacific Railway, and just about the apex of the curve, the engine was derailed. The train was going at a speed of about six or seven miles an hour at the time of the derailment. The evidence showed that on the day before the derailment the trackmen changed the particular piece of track in question some three feet outward from where it was formerly located on the ground. The dump or embankment under 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 section foreman: "The dump was made to extend towards the ditch some time before the wreck, and then we made the change in the track a day or two before the wreck. When we changed the track, we moved it a foot over on the part of the dump that had been newly made, and then raised it five or six inches and made the outside the proper elevation. Ballast was put there, and then cinders tamped under the ties." 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |