Erie Telegraph & Telephone Co. v. Grimes

• Decision Date: 03 November 1891
• Citation: 17 S.W. 831
• Court: Texas Supreme Court
• Parties: ERIE TELEGRAPH & TELEPHONE CO. v. GRIMES.

17 S.W. 831

ERIE TELEGRAPH & TELEPHONE CO. v. GRIMES.

Supreme Court of Texas.

November 3, 1891.

Commissioners' decision. Section A. Appeal from district court, La Salle county; DON. P. MARR, Judge.

McLeary & King, for appellant.

COLLARD, J.

This suit was brought by the appellee, A. C. Grimes, against the appellant, the Erie Telegraph & Telephone Company, in Karnes county, (the venue changed to La Salle,) to recover damages, actual $5,000, and exemplary $5,000, for failure to send a telegram from Kenedy to Bastrop, whereby plaintiff failed to see his mother in her last sickness and to attend her funeral. There is no question as to exemplary damages in the case. Defendant filed general demurrer, special exceptions, general denial, plea of contributory negligence, electrical disturbances preventing the transmission of the message, and tender of the price of the message. There was verdict and judgment for plaintiff for $667.56, from which defendant has appealed.

The facts of the case are substantially as follows: Plaintiff was a lieutenant in the ranger service in the company of Capt. Schmidt. The headquarters of the company were in camp about 10 miles from Kenedy, (station on the San Antonio & Aransas Pass Railroad,) at which place defendant carried on its business of telegraphing, its lines and connecting lines extending to Bastrop, in Bastrop county, about 100 miles from Kenedy. Plaintiff's mother, an old lady, lived at Bastrop with plaintiff's married sister, and was and had long been afflicted with a tumor of the womb. Her health was failing, and it was thought that the tumor would have to be removed to save her life. Plaintiff had not seen her for about two years, but he knew of her condition, and had an understanding with his sister at Bastrop that if the tumor was to be removed he should be notified, and that it was not to be done unless he was present, as it was considered a very dangerous operation. Kenedy and Bastrop were connected by railroads, and it was about a 15-hours run to Bastrop. Answers to messages from Kenedy to Bastrop ought to have been received in two hours, if promptly sent and delivered. Plaintiff was on a scout, and arrived at camp on the morning of the 19th of August, 1887, at daylight. There he found a telegram from his brother at Bastrop, W. H. Grimes, of date August the 15th, as follows: "Operation will be performed Wednesday; come if you can." He at once answered it: "Just received your message. Am I too late? Answer to-day;" writing the message on ordinary paper. He sent the message over to Kenedy, and it was delivered to defendant's operator about 9 A. M., and 90 cents paid for sending it, the charge made. The messenger returned to camp, and brought a telegram to plaintiff from one Coy to meet him at Kenedy to go with him to arrest a party. He went over to Kenedy, arrived there at about 2 P. M., when he immediately inquired of the operator if any answer had come to his telegram, and was told that none had come. He told the operator that the message was important. Coy was to come in on the train from Corpus at 4 or 5 P. M. He asked the defendant's operator about an answer to his dispatch three times before the train from Corpus came in, and was told that no answer had come. He says the operator was "just knocking about there." Coy came on the train, and plaintiff went with him to San Antonio by rail, reaching there about 9 P. M., where they remained until the next day about 12 M., when they took the International train to Pearsall, about 50 miles south of San Antonio, got to Pearsall, took horses, and went into the country, and were gone until the 25th of August, at which time he returned to Pearsall, and there found a telegram from his captain, dated August 20th, to go home at once; that his mother was in a dying condition. He went at once to Bastrop; reached there on the 26th; found his mother had died on the 22d, and was buried same day. On the 20th of August a telegram came for him from his brother-in-law D. A. Morris at Bastrop, to Kenedy, as follows: "Your mother is in a dying condition; come at once." It was addressed in care of Capt. Schmidt. He dispatched to several places to inform plaintiff of the condition of his mother, and to go home; and one of these dispatches plaintiff found at Pearsall, as before stated. The dispatch to plaintiff from Morris shows that it was received at San Antonio on the 20th at 10 A. M., where it seems it had to be repeated on defendant's line. When plaintiff left Kenedy to go on a scout with Coy he left no instructions to forward any telegrams to him to any place. San Antonio is on the way from Kenedy to Bastrop both by rail and wire. Plaintiff stopped there all night, and until 12 M. on the 20th. His hotel was near the telegraph office of the defendant and another of another company. He sent no dispatch home to Bastrop while in San Antonio. Plaintiff's dispatch to his brother was never sent from Kenedy. If it had been promptly sent, and answer promptly returned, he would have received the answer before he left on the scout, and would have had ample time to have seen his mother before she died.

Plaintiff, by leave of the court, filed an amended original petition in the district court of La Salle county, giving the style and number of the case, the court in which the suit was pending, and the term. It was in part a supplemental petition, replying by exceptions and denial to the answer of defendant previously filed; it was not addressed to any court, nor did it point out the date of the instrument amended. After styling the case, giving its number, designating the court, and its term, it simply commenced: "Now comes the plaintiff, by leave of the court, and files this his first amended original petition, and for amendment says." It then replied to the answer of defendant, after which the entire cause of action was alleged in full. It states plaintiff's residence; that the defendant, the Erie Telegraph & Telephone Company, was duly incorporated; had a local agent in the county where suit was brought, giving his name, etc.; that it owned, and on the 19th of August, 1887, operated, a telegraph line from Kenedy station to Bastrop for hire, etc., and transmitted telegrams for the public between said points. Defendant filed a general demurrer, which was overruled, and now assigns error on the sufficiency of the amendment, as such, as follows: Because the amendment was not addressed to any court; made no complaint against defendant, or any person, natural or artificial; did not state the domicile of the defendant, or by what authority it was incorporated; contained allegations that could have been made only in a supplemental petition; and failed to make a clear statement of the cause of action.

The object of these assignments is to show that the amendment, as such, does not conform to the rules of pleading. The defects pointed out, in so far as they exist, are defects of form only, and could not be accepted by a general demurrer. The objection as to statements of the cause of action is that it was not clearly and fully stated, not that it was not stated at all. This objection also goes to the form only of the statement. A defective statement of a cause of action is not subject to a general demurrer; if it is so stated that it is amendable, it is good as against a general demurrer. Wells v. Fairbanks, 5 Tex. 582; Warner v. Bailey, 7 Tex. 517; and Robinson v. Davenport, 40 Tex. 341.

There are several assignments of error predicated upon the overruling of special exceptions to the amended petition. It is contended that it did not show that the failure of defendant to send the message was the proximate cause of plaintiff's failure to see his mother before she died. The petition alleges that, if defendant had promptly sent the message, plaintiff's brother would have answered it on the evening of the same day, informing him of his mother's condition, (that the operation had been performed on the 17th,) and he would have reached her by rail before her death; that "by the failure of defendant to transmit the message he was prevented from being with his mother in her last hours on earth." The same allegation is made in better form as follows: "That because the defendant failed and refused to comply with its contract, and to transmit said message with promptness and reasonable dispatch, he was prevented," etc. There being nothing in the...