W. Union Tel. Co. v. Brown

• Decision Date: 12 December 1884
• Docket Number: Case No. 1614.
• Citation: 62 Tex. 536
• Court: Texas Supreme Court
• Parties: WESTERN UNION TEL. CO. v. JOSEPH H. BROWN.

62 Tex. 536

WESTERN UNION TEL. CO.

v.JOSEPH H. BROWN.

Case No. 1614.

Supreme Court of Texas.

Dec. 12, 1884.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

On December 4, 1880, Joseph H. Brown, to meet and protect his acceptance for $5,679.93 in favor of Dymond & Gardes, of the city of New Orleans, which matured on the 6th of the same month, procured from the banking house of Tidball, VanZandt & Co., of Fort Worth, “telegraphic exchange” on New Orleans. This he did by receiving from Tidball, VanZandt & Co. the following message:

“FORT WORTH, Texas, 12--4, 1880.

To Louisiana National Bank, New Orleans, La.:

Protect Joseph H. Brown's note to Dymond & Gardes, due 6th instant.

+---------------------------------+
                ¦(Signed)¦TIDBALL, VANZANDT & CO.”¦
                +---------------------------------+
                

On the same day appellee Brown caused the message to be delivered to the receiving clerk of appellant, the Western Union Telegraph Company, at its office in Fort Worth; and, to procure its safe and correct transmission, he caused to be paid to said clerk not only the price demanded to send the message to New Orleans, but also that demanded to have it repeated, as required by the rules and regulations of the company. The clerk was aware of the importance of the message and promised to have the same promptly forwarded.It was shown that the usual time required to send a message from Fort Worth to New Orleans was about two hours. It never, in fact, reached New Orleans; and, in consequence, the demand of Dymond & Gardes against Brown was duly protested for non-payment; by reason of which Brown claims to have been damaged, and for which this suit is brought.

Appellant Brown, in his original petition, after stating and setting forth his case, concludes with the following final and summary allegation: “And that thereby plaintiff has greatly suffered in mind and feeling and has lost a large sum of money, all by reason of said gross negligence of defendant, to his great damage, to wit: the sum of $10,000.” But in his prayer he uses the following language: “Wherefore, the premises considered, plaintiff prays … that he have judgment for the sum of $100, actual damages sustained by him as aforesaid, being the cost of protest and the amount paid defendant for transmitting said message, and for the further sum of $10,000 exemplary damages, on account of the said gross negligence and conscious indifference of defendant to their responsibilities and to plaintiff's rights in the premises as aforesaid, and for general relief.”

Upon trial in the court below, upon the original pleadings, verdict was returned for plaintiff for $4.50 actual damages, and $5,000 exemplary damages. From the judgment rendered on this verdict the defendant, the Western Union Telegraph Company, appealed to this court; and the said judgment was reversed and remanded. See opinion in Western Union Tel. Co. v. Brown, 58 Tex., 172.

After the filing of said opinion and the mandate, to wit, on the 30th day of April, 1883, the plaintiff Brown filed his first amended original petition in the case, which was a reproduction of his original petition, save and except plaintiff, in his said amendment, changed the words “ great damage” to “ actual damage,” and then added the following:

“Plaintiff would further show that said defendant, being as hereinbefore set forth and related, a corporation, acted in the premises by and through its agents and servants; and that the said J. F. Brigance was the agent and operator and manager of the telegraph offices of defendant at the said city of Fort Worth, and it was the said Brigance's duty to forward and transmit said message from said place of Fort Worth, and to see that the same was properly repeated; or, if it was not heard from within a reasonable time, to inquire after the same and to report the non-arrival of the same. That there were divers other agents and operatives and employees of defendant whose names are unknown to plaintiff, who were in charge of and were employed in the telegraph office of defendant at Dallas, Texas, the next intermediate station to Fort Worth, from which last named place said message should have been again repeated and forwarded; and it was then and there the duty of said agents, operatives and employees at Dallas, to repeat and forward plaintiff's said message; but that both the said Brigance and the said agents, operatives and employees at Dallas, wilfully failed and refused to perform their respective duties in the premises, and were guilty of the gross and wilful negligence and conscious indifference in the matter of sending and transmitting plaintiff's said message in manner and form as hath hereinbefore been set forth and related; yet plaintiff avers that said defendant corporation, after having been fully notified of the gross and wilful negligence and conscious indifference of the said Brigance, and its other agents, operators and employees at Dallas, ratified and adopted their said acts and wrongs, and, after due demand and notification by plaintiff, wholly refused to pay plaintiff any damages whatsoever that he had sustained in the premises, and wholly failed and refused even to repay to him his money, taken by its said servants and agents, as the price of the transmission of said message; but has kept and appropriated the same, and now keeps and withholds the money thus fraudulently obtained from plaintiff, and has covered the same into its treasury, and has not only failed and refused to return said money, but still keeps and retains the said Brigance, and the other said Dallas agents and servants, in its employ without even a reprimand. Wherefore plaintiff says that said defendant is liable to and ought to pay plaintiff the sum of $10,000 as exemplary and punitory damages, in addition to his said actual damages. Therefore plaintiff prays judgment against defendant for $10,000 actual damages, and for the further sum of $10,000 exemplary damages, and for costs,” etc.

Appellant on the 8th day of May, 1883, filed its second amended original answer, wherein, after general demurrer, it sets up to first amended original petition, among others, the following exception:

That said petition sets up a cause of action which appears, on its face, to be barred by the statute of limitation. The exception was overruled.

A statement of the facts on which the charge of negligence was based would serve no purpose in view of the points discussed in the opinion.

Stemmons & Field, for appellant, on their proposition that there was error in not sustaining exceptions to plaintiff's first amended original petition, cited: R. S., arts. 3202, 3203, 3204; Jones v. Lewis, 11 Tex., 359;Lewis v. Houston, 11 Tex., 645;Williams v. Randon, 10 Tex., 74;Ayres v. Cayce, 10 Tex., 107;Henderson v. Kissam, 8 Tex., 46;Erskine v. Wilson, 27 Tex., 118;Governor v. Burnett, 27 Tex., 32;Erskine v. Wilson, 20 Tex., 81;Hill v. Clay, 26 Tex., 650;Western Union Telegraph Co. v. Brown, 58 Tex., 170;Hays v. H. & G. N. R. R. Co., 46 Tex., 276;Edelman v. St. Louis Transfer Co., 3 Mo. App., 503;Illinois R. R. Co. v. Hanmer, 72 Ill., 353;Peoria Bridge Association v. Loomis, 20 Ill., 251;Wardrobe...