Western Union Telegraph Co. v. Brown

• Citation: 285 S.W. 866
• Decision Date: 06 May 1926
• Docket Number: (No. 1287.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WESTERN UNION TELEGRAPH CO. v. BROWN et al.
• Court: Court of Appeals of Texas

285 S.W. 866

WESTERN UNION TELEGRAPH CO. v. BROWN et al.

(No. 1287.)^*

Court of Civil Appeals of Texas. Beaumont.

May 6, 1926.

Rehearing Denied May 26, 1926.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Action by Leo Brown and another against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Young & Stinchcomb, of Longview, for appellant.

Fairchild & Redditt, of Lufkin, for appellees.

O'QUINN, J.

Appellees, Leo Brown and Antonio Brown, sued appellant to recover damages in the sum of $2,500 for alleged failure to promptly transmit and deliver two telegraph messages filed at Trinity, Tex., addressed to appellees at Lufkin, Tex., signed by J. E. Brown, their brother, concerning the illness of their father, Warren Brown. Appellees alleged that on July 6, 1923, J. E. Brown filed with appellant, at Trinity, Tex., and paid all charges for transmission and delivery, the following telegram:

                              "Trinity, Texas, July 6, 1923
                

"Leo and Antonio Brown, Care Lufkin Foundry, Lufkin, Texas. Papa calls for you two children, very low, come at once.

                                  "[Signed] J. E. Brown."
                

This message was never delivered, and appellees allege that, if it had been timely transmitted and delivered, they could and would have been with their father before his death, but that appellant negligently failed to transmit and deliver said message to them, by reason of which negligence they were denied being with their father, because of which they suffered mental anguish and damages in the sum prayed for.

The second message was sent two days later. It read:

                          "Trinity, Texas, July 8, 1923
                

"Leo and Antonio Brown, colored, Care Lufkin Foundry, Lufkin, Texas. Papa is dying, come at once.

                               [Signed] J. E. Brown."
                

This message was filed for transmission at Trinity at 11 :30 a. m. Sunday, July 8, 1923. It was delivered on Monday. Antonio Brown, after being advised by long distance telephone operator that there was a message at the Western Union office for her, inquired for said message, and was told there was none for her. She returned to long distance and was again told that there was such message for her at the Western Union office. She again called for it, and it was given to her. Appellees then immediately went to the home of their father, but he had died at 1:30 p. m. on Sunday. However, they were in time for the funeral.

Appellant answered with a general demurrer, general denial, and specially denied that the alleged message of July 6, 1923, was ever delivered to it for transmission, and that, if said message was filed with it for transmission, it was a part of the contract that appellant should not be liable for damages unless the claim for damages should be presented within 95 days after the cause of action accrued, and other defenses not necessary to mention.

Appellees replied to said answer by supplemental petition.

The case was tried to a jury upon special issues, and upon their answers judgment was rendered for appellees in the sum of $500 — each of appellees $250.

Appellant's first, second, and third propositions assert that the court erred in submitting to the jury the question of whether or not the alleged message of July 6, 1923, was filed with appellant for transmission and delivery, because not supported by the evidence, and because there was no evidence showing the filing of such message. The assignments are overruled. J. E. Brown testified, positively, that he did deliver the message to appellant for transmission, and the jury found in his favor that it was so filed.

Appellant's fourth proposition is that, if the message of date July 6, 1923, was filed with appellant for transmission and delivery to appellees, it was written on a regular sending form of appellant, on which it was made a part of the contract that appellant would not be liable for damages unless the claim for damages were presented within 95 days after the cause of action, if any, accrued, and, the evidence not showing that such claim was filed within 95 days after the cause of action asserted accrued, therefore appellant is not liable. This contention cannot be sustained. The evidence shows that the message was written by J. E. Brown, the sender, on a blank piece of tablet paper, and that when he handed it to the agent of appellant for transmission the agent copied it off onto a regular form. Brown testified that he did not know of any such provision on the blank form, and that same was not in any manner called to his attention, and the jury found this to be true. The law is that, where the agent of a telegraph company writes a message on the company's blank form, which the sender does not sign nor agree to, the stipulations on the back of such blank form are not binding upon the sender. Western Union Telegraph Co. v....