Western Union Tel. Co. v. Broesche

• Decision Date: 12 February 1889
• Citation: 10 S.W. 734
• Parties: WESTERN UNION TEL. CO. <I>v.</I> BROESCHE.
• Court: Texas Supreme Court

10 S.W. 734

WESTERN UNION TEL. CO.

v. BROESCHE.

Supreme Court of Texas.

February 12, 1889.

Commissioners' decision. Appeal from district court, Washington county.

Action by W. A. Broesche against the Western Union Telegraph Company, for damages for delay in delivering a message. Judgment for plaintiff, and defendant appeals.

Stemmons & Field, for appellant. Basset, Muse & Muse, for appellee.

ACKER, C.

Appellee carried his wife from their home, near Burton, to Austin, for medical treatment; Dr. Hons, their family physician, accompanying them. The wife died at Austin on Sunday, July 17, 1887, and Dr. Hons and appellee went to appellant's office in Austin, between 6 and 7 o'clock P. M. on that day, and delivered to appellant the following message: "Mrs. Broesche is dead; will bring corpse on train to-night. J. M. HONS." This telegram was addressed to appellee's brother-in-law, Hoffman, at Burton. Appellee paid the charges for transmitting the message, and left Austin with his wife's body that night by train, arriving at Burton about 1:30 A. M. on the 18th of July. The message was not delivered until about 8:30 A. M. the next day, after it was deposited with appellant's agent in Austin, and some hours after the arrival of the corpse. This suit was brought by appellee to recover damages for the alleged negligent delay in delivering the telegram. The trial was by a jury, and resulted in verdict and judgment in favor of appellee for $1,168, from which this appeal is prosecuted.

The court charged the jury to the effect that, if they found that Hons delivered the telegram to appellant's agent in Austin as alleged, they would then find whether or not in so delivering it Hons acted on behalf of appellee and at his request, and that, if they found Hons did not so act, they should return a verdict for appellant.

It is insisted that the court erred in giving this charge, in this, that it fails to submit the question whether appellant had notice that Hons was acting as appellee's agent in contracting for the delivery of the message. No special instruction was requested to cure the alleged omission here complained of. Besides, we are of opinion that it was immaterial whether appellant was notified that Hons was acting as agent for appellee or not. We cannot see how this could have affected the rights, or influenced the conduct, of appellant's agents. Appellee and Hons were together in the presence of the agent to whom the message was delivered at Austin. Appellee paid the charges for transmitting the message. The operator to whom the message was delivered testified that he knew from the wording of the message that it demanded prompt delivery. Conceding that appellant was not informed that Hons was acting as agent for appellee, we are unable to understand how the lack of this information affected, in any way, the conduct of appellant's agents. It does not appear that they would have done more or acted differently under the contract. Story, Ag. §§ 418, 420. We think, however, that appellant was sufficiently informed of the agency of Hons.

We think there was no error in the omission in the charge complained of by the third and fourth assignments of error.

The court charged the jury to the effect that the fact that appellant's office at Burton was closed at the time its agents at Austin received the message for transmission would be no defense for failing to transmit and deliver the message, and it is contended that the court erred in this charge. We think the court did not err in giving this charge. The contract to transmit the message was made by appellant...