The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-07

Milan county, being in gfeai distress
and recurring the help and consola-
ton ol his father, l. Levy, and of his
! wife's mother, Mrs. Dean, both living
at Cameron, delivered to appellant
October l, lS82.at 10 a. m, "a telegram,
paying charges thereon, and inform.
ing appellant OF the necessity of
prompt transmission and delivery OF
the message, and that appellant UNI
dertook to deliver the same In rea-
sonable time. The telegram WAS as
follows:
"CLEBURNE, Oct. /, 1SS2.-To |.
4 Levy, Cameron, Texas:-B ettie and
baby dead. Come to Cleburne to-
night. Wade meet you. Tell her
mother. }. T. LEVY"
Further alleged that the tele-
gram was not delivered till III a. H.,
October 2; that the transmission and
delivery of the message October LIST,
though Sunday, was ii work of char
ity and necessity; that the body of
Mrs. Levy was kept in waiting for
the parties till about 10 a. H., Octo-
! Der 2,when it could be kept no longer,
and had to be buried by him, and
his grief borne by him alone among
strangers without consolation or re-
lief from any relative or friend that
he was at great expense, and ran al
most entirely out of funds to keep the
body, and finally had to sacrifice what
little property he had in order to pay
expenses incurred and to avoid the
importantly OF his creditors that on
the failure of his father to answer his
telegram or to come to his relief he was
greatly distressed aud mortified, and
! that the injury inflicted on the feel
ings of the appellee WAS painful IN
/ the extreme, and that he was dam
/ aged ill the sum of $0O,OOO.
The petition further alleged that
! the message could have been sent and
delivered to his father in time to have
enabled him to reach Cleburne by the
night t, ain of Sunday the day it was
entrusted to the company to deliver
to the senior Levy, who was mer-
chant living in six hundred yards Of
the telegraph office, and would have
received it and responded to the re-
quest if the messenger boy at Gamer
ON had taken it to the residence in
stead of the store of Mr.. Levy, ST., to
which latter place the boy took it
three times without finding him
and as Il result the dispatch was not
! delivered till 10 o'clock Il. m. Monday.
1t does not appear that the meSsen-
ger boy was advised of the necessity
for prompt delivery of the telegram
and the facts alleged are in the main
proved. The verdict was for $1,000
damages in favor of plaintiff.
For the defense it was urged that
the court erred in overriding various
exceptions filed to the petition, only
two of which, however, are conSid-
cred by this court, the others being
clearly untenable.
Held: There was no error in ruling
that the contract was not illegal be-
cause made and to be executed on
sunday. The acts which appellant
contracted to perform were necessary
to secure the objects contemplated
10y the parties. The court might and
ought to have instructed the jury
that the contract to do things necessa-
ry to such an end was contract to
do work Of necessity and of charity,
and therefore valid. Doyle VS.. Lynn,
ll8 Mass.
In cases of this character, says the
court, there is frequently great diff
Guilty in neutrality-suspicious. they are
to be limited to such measure of dam
ages as are usually allowed in cases
for breach of contract, or whether,
in addition to such measure, circum-
stances of aggravatiOn may be shown,
and the larger measure of damages
recognized as proper in cases of torts
applied; or whether or not such cases,
being to some extent based upon con-
tract, may not be considered as essen
tally founded on tort.
Actions such as this are not based
solely upon breach of contract, and
hence to be considered in the deter
mination of the measure of damages
by the rules applicable to breach of
contract to sell and deliver property,
or to do certain acts in reference to
property; but the rules applicable to
such contracts, in so far as applicable,
may be looked to; as where contract
has been made under special circum-
stances which are known to the con-
tracing parties, and from which, in
the nature of things, special damage
will result it the contract is not per-
formed, then the parties are to be pre-
Sumed to have contracted with refer
ence to such circumstances and the
damage which will naturally flow
from a performance of such con-
tract; and in such case where the ele-
ment of wrong, oppression or Willful
neglect might enter into the breach of
the contract, any damage either actual
or exemplary, which the law author
ICES to be recovered, ought to be held
to have been contemplated by the par
ties, and therefore recoverable unless
technical rules of procedure or evil
dence prevent it.
Further held: In this state we have
no forms of action and plaintiff may
state all the facts upon which he
relies for recovery, if they be so
connected, that out of the same tran
saction one injury results; the extent
of the injury and right to increased
damages being affected by all the at
tendant facts. The tendency of the
decisions in courts where technical
forms of action have been discarded,
is to apply the same rule for the meas
ure of damages in cases based upon
contract which are attended with cir
cumstances of aggravation as is APP
piled in actions grounded in tort
solely.
During the trial the court per-
mitted the appellee to testify as fol-
! LEWIS: was there in johnson
county } among strangers, and with
out friends and money. l had to
mortgage my team to get burial
case; my creditors were crowding me
for money and l had to sacrifice my
property to satisfy them. l owed
Quilitches 1927, for staying with him
while my wife was sick. From Thurs
day until Monday he followed me to
Cleburne and "dunned" me until l let
him have my harness, and / was very
much distressed at my financial con-
dition." To which the appellant OBJ
jected, on the grounds that it was i'm
proper and irrelevant evidence, and
that it was liable to unduly arouse the
sympathy of the jury and mislead
them.
On application of plaintiffs coun-
sci plaintiff was allowed to withdraw
the evidence, and the court instructed
the jury accordingly to disregard it
in making up their verdict. The
original admission of this testimony,
however, is assigned as error
Held, The evidence being of a char
acter calculated to arouse the sympa-
thies of the jury in the plaintiffs
favor, and their Indignation against
the appellant, besides furnishing an
improper basis for damages should
not have been admitted.