Klopf v. Western Union Telegraph Co.

• Decision Date: 31 October 1906
• Parties: KLOPF v. WESTERN UNION TELEGRAPH CO.
• Court: Texas Court of Appeals

97 S.W. 829

KLOPF v. WESTERN UNION TELEGRAPH CO.

Court of Civil Appeals of Texas.

October 31, 1906.

Rehearing Denied November 28, 1906.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Frederick Klopf against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

Hogg, Watkins & Jones, for appellant. Hume, Robinson & Hume, N. G. Kittrell, Jr., N. L. Lindsley and Geo. H. Fearons, for appellee.

FLY, J.

This is a suit for damages resulting from the failure to promptly deliver three messages, whereby appellant's wife, Mrs. Maggie Klopf, was prevented from attending the funeral of her father, John Clampit. The court instructed the jury to return a verdict for appellee.

The assignments of error attack the action of the court in instructing a verdict, and that necessarily requires a statement and review of the facts. About 2 o'clock in the afternoon of October 5, 1903, Roy Clampit, a brother of Mrs. Maggie Klopf, delivered a message to the agent of appellee, at El Campo, Tex., directed to F. Klopf in words as follows: "Mr. F. Klopf, Houston, Texas. Come at once, your father very low. Roy Clampit." On the face of the message were written the words "Lives on Ho. hites," and it may be presumed that they were written there either by the sender through information received from him, as he told the agent that Klopf resided in Houston Heights, or, as he expresses it, "towards Houston Heights." An extra fee of 25 cents for its delivery at Houston Heights was paid by the sender. About 6 p. m. of the same day, Roy Clampit wrote another telegram and placed it in the hands of one Axel E. Knall to be carried to the telegraph office. It was as follows: "Mrs. Maggie Klopf, Houston Heights, Houston, Tex. Your father is dead. Come at once. Roy Clampit." The telegrams were delivered to Mrs. Klopf about 3 o'clock on the afternoon of October 6th, and at 4:20 p. m. a message was sent by F. Klopf to Roy Clampit asking that the burial be postponed. That message was delivered to Roy Clampit at 8 p. m. John Clampit was buried at 5 p. m. If the message to F. Klopf and Maggie Klopf had been delivered on the evening of the 5th or at any time up to 9:30 a. m. on the 6th, Mrs. Klopf could have reached El Campo, in time for the funeral. Appellee made diligent inquiry in regard to the Klopfs in Houston Heights, but ascertained that they did not live there, and afterwards, when it was ascertained that appellant lived in Vick's Park, the messages were delivered. Houston Heights is a municipality separate from the city of Houston, and outside of the delivery limits in Houston. Vick's Park is situated in the country, and neither in Houston nor Houston Heights. Appellant paid $1 to appellee for the prompt transmission and delivery of his message to Roy Clampit. That message was not promptly delivered, but there was a delay of two hours for which no excuse was offered by appellee.

Conceding the importance of the two telegrams and that they should be considered as one transaction, the action of the court, in instructing a verdict for appellee, was correct unless it was proved that it was negligent in not promptly delivering the messages to Klopf and wife. In considering the matter of diligence the first matter is as to the contract between the parties, because the diligence or lack of it must rest upon the terms of the contract. The contract between the appellee and the sender of the two messages in this case was that appellee would promptly transmit the messages and expeditiously deliver them to the persons to whom they were addressed at Houston Heights. The service fees were paid for delivery in Houston Heights and no other place. It may be said, by the way, that, however Roy Clampit may have expressed it, in his conversation with the agent, he and the agent's minds met on the proposition that Klopf and wife lived in Houston Heights. This is evidenced by the fact that the agent inquired in his presence as to the extra rate to Houston Heights and it was written on the first telegram that F. Klopf resided in Houston Heights. That notation, by whomsoever made, must have been made with the knowledge of Roy Clampit, for, when he wrote the second telegram, he directed it to Houston Heights. That place is an incorporated town or city, in the vicinity of Houston, but just...