Western Union Tel. Co. v. Giffin

• Decision Date: 13 November 1901
• Citation: 65 S.W. 661
• Parties: WESTERN UNION TEL. CO. v. GIFFIN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 661

65 S.W. 661

WESTERN UNION TEL. CO. v. GIFFIN.¹

Court of Civil Appeals of Texas.

November 13, 1901.

Appeal from district court, Presidio county; A. M. Walthall, Judge.

Action by C. W. Giffin against the Western Union Telegraph Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Beall & Kemp, for appellant. P. H. Clarke, for appellee.

JAMES, C. J.

This case on a former appeal is reported in 57 S. W. 327. Our conclusions of fact are: That about daylight on the morning of December 20, 1897, plaintiff left Toyahvale for Marfa with the corpse of his baby, on his way to Sabinal, Tex., to inter it in the family burial ground at Sabinal. On reaching Marfa, about 7 p. m. of that day, he went to the telegraph office of defendant, and wrote a telegram addressed to A. J. Durham, his brother-in-law, at Sabinal, relative to the burial of his child, and the agent suggested it could be made shorter, and wrote the following telegram: "Marfa, Texas, Dec. 20, 1897. A. J. Durham, Sabinal, Texas: Will be there to-morrow to bury our baby. [Signed] C. W. Giffin." That this telegram was delivered to the operator to be sent, plaintiff paying the charge of 50 cents. That at the time of delivering same he told the operator that he was sending it to his brother-in-law at Sabinal, who had charge of the family cemetery; that he had other relatives at Sabinal; that his wife's people lived there; that his reasons for sending it were that his relatives at Sabinal might be notified in time to meet him on arriving there with the corpse, and accompany him to the grave; and also that all arrangements might be made for the funeral without delay on plaintiff's arrival at the depot. Plaintiff left Marfa on the same evening's train, arriving at Sabinal with the corpse about 10 a. m., the following morning. No relatives were at the depot to meet him, and he found from the operator that he had seen Durham that morning, but had not received the message. He accordingly was obliged to place the corpse in the warehouse of the railroad company, and go in search of Durham or other relatives to have arrangements made for burying it. That he first found Mr. Peters, a merchant, also a brother-in-law, who immediately went in quest of parties to dig the grave, and in about two hours returned with two Mexican gravediggers. That plaintiff returned to the corpse as soon as Peters had found the Mexicans. That he then went with Peters, a sister-in-law, and the Mexicans to the home of Durham, about three-eighths of a mile from the depot, and that then Durham, who had charge of the family cemetery, went in a wagon with plaintiff, Peters, said sister-in-law, and the Mexicans to prepare a grave. On reaching there, Durham designated the place, and the Mexicans went to work. Plaintiff then returned to the corpse in the warehouse, and later Peters and the others, who had accompanied him to the graveyard, came with a wagon, and took the body, with plaintiff, to the grave, where they arrived about 5 p. m., before the grave was completed. That the other relatives did not come to depot nor escort the remains to the grave, except Ross Kennedy, plaintiff's father-in-law, who reached the grave after the arrival of the corpse. The reason for the failure of the telegram was that defendant had cut the wire connecting Marfa with Sabinal at Spofford for the purpose of connecting the eastern end of the wire with the City of Mexico, in order to facilitate its business with Mexico, snowstorms having interfered with its regular connections north of Marfa. This fact, it seems, was not known to the operator at Marfa when he received the telegram for transmission. Plain...