Loper v. Western Union Tel. Co.

• Decision Date: 11 May 1888
• Citation: 8 S.W. 600
• Parties: LOPER v. WESTERN UNION TEL. CO.
• Court: Texas Supreme Court

8 S.W. 600

LOPER v. WESTERN UNION TEL. CO.

Supreme Court of Texas.

May 11, 1888.

Error from district court, Eastland county.

This was an action by J. P. Loper against the Western Union Telegraph Company for damages for negligently delaying the delivery of a telegram to plaintiff's wife. A demurrer to the petition was sustained, and plaintiff brings error.

Davenport & Truly, for plaintiff in error. Stemmons & Field, for defendant in error.

GAINES, J.

This is a writ of error to a judgment sustaining a general demurrer to plaintiff's petition. The main issuable facts in the case, as shown by the allegations in the petition, are that Mrs. S. J. Loper is the wife of the plaintiff. That M. A. Truly was her son, and that on the 2d of October, 1882, he was lying dangerously ill at the town of Mineral Wells, in Palo Pinto county. That plaintiff and his wife then resided at Whitesborough, in Grayson county. That on the day above named, "in obedience to a special request of Mrs. S. J. Loper theretofore of him made, and for the special information and guidance, the said M. A. Truly, assisted by others, to-wit, Dr. Fowler, D. W. Staton, Thos. Johnson, and others to the same end acting, prepared for transmission and delivery by defendant a message in writing of great importance and urgency to S. J. Loper, substantially as follows, to-wit: MINERAL WELLS, October 2, 1882. To Mrs. S. J. Loper, Whitesborough, Tex: Come immediately. I am very sick. M. A. TRULY. That the message was delivered to the agent of defendant at Mineral Wells at 4 P. M. on the day of its date, and was paid for. That the agent was informed of the relationship between the sender of the message and the person to whom it was addressed. That, on the 2d of October, plaintiff and his wife were at their residence in Whitesborough, which was within six hundred yards of the office of the defendant at that place. That this was well known to the agent at that point. That the message could have been delivered within half an hour from the time of its receipt by the company's agent at Mineral Wells. That, if it had been so delivered, Mrs. Loper would have gone to her son, and, by the usual course of travel, would have reached him by 2 P. M. the next day, and that, at all events, she could have reached Millsaps (an intermediate point on her route) about midnight on October 3d, and would there have met the funeral cortege with the dead body of her son." It is further alleged that, by reason of the negligence of defendant, the dispatch was not delivered until after 6 o'clock on the evening of the day last named; that she took the next train going towards her destination, and did not arrive at Millsaps until the evening of October 4th, "when she learned that her son was dead, and had been carried to Eastland for burial, and that he had died at Mineral Wells about noon on the previous day." It is also averred that she telegraphed to Eastland to delay the burial, and immediately proceeded to that point, but failed to arrive until after the body had been interred. The petition also contains very full allegations as to the business of the company, the means of travel between Whitesborough and Mineral Wells, as to the hardship and inconvenience suffered by Mrs. Loper in being compelled to travel on a freight train during a part of the way in order to expedite her journey, and...