Mitchell v. Western Union Tel. Co.

• Decision Date: 29 January 1896
• Citation: 33 S.W. 1016
• Parties: MITCHELL v. WESTERN UNION TEL. CO.
• Court: Texas Court of Appeals

33 S.W. 1016

MITCHELL v. WESTERN UNION TEL. CO.

Court of Civil Appeals of Texas.

January 29, 1896.

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

Action by W. F. Mitchell against the Western Union Telegraph Company. Judgment for defendant. Plaintiff appeals. Reversed.

This case was before this court on a former appeal from the judgment of the lower court sustaining general demurrer and special exceptions to plaintiff's petition. We refer to the case as reported in 5 Tex. Civ. App. 527, and in 24 S. W. 550, which will show the nature of the suit, as set forth in the petition. On the last trial the court below submitted the case to the jury on special issues, which having been answered in part adversely to plaintiff, judgment was rendered for the defendant, from which judgment the plaintiff has appealed. Plaintiff left his son F. A. Mitchell in charge of his ranch and cattle in Presidio and Brewster counties, a dry country at some seasons of the year, the son having no authority, according to plaintiff's contention, to negotiate and purchase water privileges for the stock from other parties owning and controlling water and grass in case the water should fail on his own ranch and become insufficient for his stock. A further contention of plaintiff, as shown by his petition and testimony in his behalf, was that, in case of such failure of water on his ranch, he could have procured from other parties water privileges for his cattle, and would have done so if advised by his son of such failure of water. Plaintiff resided at San Marcos, and his son was with the cattle on the ranch near Marfa, Tex. The water becoming insufficient for his large number of cattle on the ranch, and there being danger of the supply failing, on the 24th day of March the son sent from Marfa to San Marcos, to his father, over defendant's telegraph line, the following message: "Water is getting low; come out." The failure to deliver this message, and the resulting injury to the cattle by want of provision of water for the cattle, are the subject-matter of the suit, plaintiff showing that, if the message had been delivered in a reasonable time, he could and would have gone from San Marcos to the ranch, and could and would have procured sufficient water to relieve the cattle and prevent the injury which his son could not have done, not having authority to do so. There was an error in the transmission of the message occurring at El Paso, a relay office of defendant: "W. F. Mitchell," the addressee, being changed to "E. W. Fitchell." In answering the questions propounded to them by the court, the jury found that the delay and nondelivery of the message were due to this error, and that the error was not caused by high winds, storms, or like disturbances; that the cause of the error resulted from the want of due care on the part of defendant's servants, by negligence, at El Paso. Plaintiff, not being notified of the failing of the water, did not reach the ranch until several days later than he would if the message had been promptly sent and delivered, and in the meantime loss occurred by injury to the cattle for want of water, the jury finding that "losses were caused by the failure of water at the time in question."

Brown & Pritchett and L. H. Browne, for appellant. John A. Green, Sr., Hutchison & Franklin, John A. Green, Jr., and Walton & Hill, for appellee.

COLLARD, J. (after stating the facts).

There is testimony tending to show that the agent was not authorized or provided by his principal with means to obtain water in case the supply on the ranch became insufficient for the cattle, and that the failure of the water was not observed by the agent until it had become scarce and insufficient, and that the cattle would necessarily have been injured to some extent, and that some of the losses would have occurred, even if the dispatch had been properly transmitted and delivered in reasonable time, and even if the plaintiff had arrived on the ground in due time, as intended by the dispatch. In other words, it might be inferred from the testimony that plaintiff and his son, as agent, had been less careful than they ought to have been in providing for the cattle, and that by this want of care the cattle were in bad condition, or, at least, threatened with injury and serious loss. That did in fact result, and would have resulted if plaintiff had reached his ranch as intended by the dispatch. It is also true that this want of care on the part of plaintiff and his agent, if not remedied as was expected by the dispatch, would have resulted in all the injury and loss to the cattle that did result, including that for which suit is brought. But it was also shown that if plaintiff had arrived in due time, as summoned by the dispatch, he would and could have saved much of the resulting loss. Upon this phase of the case the court below concluded that such want of care on the part of plaintiff and his agent would defeat his action (at least, some of the court's charges will bear this construction), notwithstanding plaintiff may have been able to have relieved the cattle if he had arrived as intended by the dispatch, and notwithstanding his failure to arrive in time to relieve them and save much of the loss was due to the negligence of defendant in transmitting and delivering the dispatch with ordinary care. For instance, the court instructed the jury, at the request of defendant, that "if you believe from the evidence that plaintiff's agent negligently allowed the cattle to go into and muddy up Antelope Springs, and that the injury occurred to said cattle by reason of said negligence, no recovery can be had by plaintiff for said injury." Appellant assigns this charge as error. The court also qualified a charge asked by plaintiff in such a manner as to indicate to the jury that plaintiff could not recover if his agent's negligence prior to the dispatch contributed to or caused the injury, even though, at least, some of the injury would have been avoided if defendant had performed its duty in regard to the dispatch. The charge asked by plaintiff was as follows: "Special charge No. 1 asked by plaintiff: `If you should find from the evidence in this case that either the plaintiff or his agent, F. A. Mitchell, or both, at and prior to March 24, 1890, had failed to exercise ordinary care in respect to the supply of water on plaintiff's ranch; and that on the 24th day of March, 1890, such supply of water had become and was insufficient in quantity for sustenance of the cattle on said ranch; and that said cattle were then in peril from such insufficiency of water; and that, when defendant received such message for transmission and delivery, it was informed of such perilous situation of said cattle; and that defendant did not exercise ordinary care in regard to the transmission and delivery of the message; and that, by the exercise of ordinary care, the defendant could have transmitted and delivered said message in time to have prevented, either in whole or in part, subsequent injuries to said cattle, if any, caused by such insufficiency of water, but that it failed to do so; and that meanwhile, on and after March 24, 1890, plaintiff and his said agent did exercise ordinary care in their efforts to relieve the cattle from such peril, but failed thereby to prevent subsequent injuries to the cattle, so that the cattle were, in fact, subsequently injured, as alleged in plaintiff's petition, for want of water; and that such injuries were increased and prolonged by such negligence of defendant in regard to such message,—then you are further instructed that, in law, such negligence on the part of defendant would be considered the proximate cause of so much of said injuries as were caused by the sufferings of the cattle being thus prolonged and increased, and that such prior negligence of plaintiff or his agent would, in law, be considered the remote cause.'" To this charge of plaintiff the court made the following qualification, and gave it to the jury as qualified, which qualification is assigned as error by the appellant: "The foregoing charge is given with the following qualification: `That if you find the plaintiff's agent either failed to discover the condition of the water, which, in his judgment, required the presence of his principal, or negligently delayed steps to secure his presence, it would, as you are instructed in the general charge, constitute contributory negligence, and debar plaintiff's recovery.'" In the general charge upon the issue of contributory negligence, the court charged: "Even if want of due care by the servants of defendant company is shown, still the plaintiff cannot recover, unless it appears from the evidence that the losses and injuries for which plaintiff sues to recover compensation are traceable to, and have resulted from, such want of due care or negligence of defendant. Or if you find they were partly due to such negligence, if you find that defendant has shown that plaintiff was guilty of contributory negligence, and that the injuries complained of are partly attributable to his own negligence, he is not entitled to recover." As to agency, the court instructed the jury that "if plaintiff, residing in San Marcos, placed his son, as his general agent, in charge of his stock of cattle in Presidio county, in the absence of any express limitation or restrictions of his authority, such agent was empowered and it was his duty to do what was necessary to protect and promote the business intrusted to him, to provide food and water for the cattle, and to protect them by all reasonable and practicable means against all perils and injuries. A failure on the part of said general agent to exercise such powers and to discharge such duties would be the failure of the principal, and any injury resulting therefrom would be due to his own negligence; and, if it co-operates with or contributes to cause injury partly...