Western Union Tel. Co. v. Cobb

• Decision Date: 20 March 1902
• Citation: 67 S.W. 87
• Parties: WESTERN UNION TEL. CO. v. COBB.
• Court: Texas Supreme Court

67 S.W. 87

WESTERN UNION TEL. CO. v. COBB.

Supreme Court of Texas.

March 20, 1902.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by R. Cobb, Jr., against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant appealed to the court of civil appeals, which certifies questions. Questions answered.

Wilkins & Vinson, for appellant. J. A. Graham and J. M. Chambers, for appellee.

WILLIAMS, J.

The court of civil appeals for the Second district certifies the following question:

"This appeal, now pending before us, is from a verdict and judgment in favor of appellee against the appellant recovered in the county court of Montague county as damages for the failure on the part of appellant to promptly deliver a message sent by appellee to his brother, Percy Cobb, at Bowie, Texas, informing him of the serious illness of appellee in the Indian Territory, and of the surrounding circumstances of distress, which his brother could and would have relieved, as found by the jury, if the telegram had been promptly delivered. Instead of delivering the message to Percy Cobb, it was promptly delivered to the clerk of the Brown Hotel, where he roomed and boarded. The evidence, however, failed to show that it was the custom of its clerk to receive telegrams for the hotel guests, and the evidence affirmatively showed that Percy Cobb had not in fact given said hotel clerk any such authority, unless it was conferred by his taking lodging and board at the hotel. Unless the delivery to the clerk was a sufficient delivery, the company was undoubtedly guilty of negligence, and liable in damages for the injury sustained; but, if the delivery to the hotel clerk was a sufficient compliance with its contract, appellee was not entitled to recover.

"Error is assigned to the court's refusal to give the following instruction at the request of appellant: `If you find and believe from the evidence that the defendant's messenger boy, upon the receipt of the message in question in this case, delivered the same to the clerk of the Brown Hotel, where Percy Cobb, the addressee of said message, roomed and boarded, then you are instructed that such delivery was a full and complete discharge of the defendant's duty in reference to the delivery of said message, and you will find for the defendant.' Unless there was error in refusing this charge, the judgment must be affirmed; and we deem it advisable, in response to re...