Mitchell v. Western Union Tel. Co.

• Decision Date: 13 December 1893
• Citation: 24 S.W. 550
• Parties: MITCHELL v. WESTERN UNION TEL. CO.
• Court: Texas Court of Appeals

24 S.W. 550

MITCHELL v. WESTERN UNION TEL. CO.

Court of Civil Appeals of Texas.

December 13, 1893.

Appeal from district court, Hays county; H. Teichmueller, Judge.

Action by J. F. Mitchell against the Western Union Telegraph Company for failure to deliver a telegraph message. From a judgment sustaining a general demurrer and special exception to the petition, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by COLLARD, J.:

Suit by the appellant, W. F. Mitchell, against the appellee, to recover damages for failure to deliver the following message: "Marfa, Texas, 3/24/90. To W. F. Mitchell, San Marcos: Water is getting low. Come out. [Signed] F. A. Mitchell." The court below sustained a general demurrer and special exceptions to the amended petition, and to a trial amendment, filed by plaintiff, which reduced the right of recovery to nominal damages, of which the court had no jurisdiction; and, plaintiff declining to further amend, the court rendered judgment for defendant, from which plaintiff has appealed.

The petition substantially alleged the following facts: Plaintiff lived in San Marcos, Hays county, Tex., and owned a cattle ranch in Presidio county, Tex., a few miles from the town of Marfa, on which ranch he had and owned about 10,000 head of cattle, the ranch and cattle being in charge of his agent, F. A. Mitchell. The cattle required a large supply of water, and it was sufficient on the ranch for their sustenance up to the 23d of March, 1890, when it was suddenly reduced, and became insufficient, so that the cattle were, on the 24th day of March, in danger of perishing for water, unless speedily relieved. Mitchell, the agent, was not, in the absence of plaintiff, (who was at his home in San Marcos,) able to procure the needed supply of water for the cattle. In the absence of plaintiff from the ranch, Mitchell, the agent, could not, nor could any one else, make the necessary arrangements to supply the water, because special negotiations on behalf of plaintiff with third parties were necessary to effect such arrangements. Such arrangements were practicable, and could have been successfully negotiated with third parties by plaintiff in time to have prevented the alleged damage to the cattle. The presence of plaintiff at the ranch was necessary to effect such arrangements. Accordingly, on the 24th of March, 1890, at 8:35 A. M., plaintiff's agent delivered to defendant at its office in Marfa the message before set out, which was received by defendant, and agreed to be transmitted to San Marcos, and immediately delivered to plaintiff with reasonable diligence, he paying the toll, — fifty cents; defendant owning and operating a continuous line for telegraphic communication between the two points. The petition here alleges: "That when said message in writing was so delivered to and accepted by defendant, to wit, at the said time and place, and in the manner aforesaid, defendant was then and there at the same time notified of and informed of the aforesaid dangerous situation of said cattle; that they were upon said ranch; that the supply of water had become insufficient for them; that they were in present danger of starving for water; of the urgent necessity for the personal presence of plaintiff at said ranch, in order that he might provide water for them; and that said message in writing was intended to summon him to come at once from said town of San Marcos to said ranch, with all possible speed, in order that he might make arrangements necessary to obtain the needed water." The petition further shows that the plaintiff was at his home in San Marcos, as was well known to defendant, at the time, and that defendant negligently failed to deliver the message to him; that, if it had been delivered to him within a reasonable time, he could and would have gone thereupon forthwith to his ranch, and could and would have provided water for his cattle in time to have prevented the injuries to them complained of that plaintiff was ignorant of the dangerous condition of the cattle, and remained absent from the ranch three days longer than he would have done if the message had been delivered with reasonable diligence; that if it had been so delivered he would have arrived at his ranch three days earlier than he actually did, and could and would have provided water for his cattle, and thus have prevented the injury complained of, his actual arrival there being too late to prevent such injuries to the cattle; that during the three days prior to his arrival at the ranch the cattle were without sufficient water, and suffered for want of water, whereby 1,100 of the cows of plaintiff lost their calves, and were damaged to the amount of $5,500. From the same cause, 550 of his cattle died, of the value of $6,000, and the remainder were injured in value to the amount of $15,500, —all aggregating $27,000.50. "Wherefore," it is alleged, "that by reason of the premises hereinbefore set out in this petition, and in and through and by the gross negligence of defendant, aforesaid, in regard to said message in writing, and the said injuries to the said property, caused thereby, he, plaintiff, was and is actually damaged in the aggregate sum of $27,000.50, for which he brings this suit." Prayer for such amount.

O. T. Brown, for appellant. John A. & N. O. Green and Denman & Franklin, for appellee.

COLLARD, J., (after stating the facts.)

The questions for us are: Should the general demurrer and the special exceptions to the petition have been sustained? The special exceptions are that it appears from the petition that, if plaintiff has any right to recover, it is only for nominal damages,...