Western Union Tel. Co. v. Culberson

• Decision Date: 12 December 1890
• Citation: 15 S.W. 219
• Parties: WESTERN UNION TEL. CO. v. CULBERSON.
• Court: Texas Supreme Court

Page 219

15 S.W. 219

WESTERN UNION TEL. CO. v. CULBERSON.

Supreme Court of Texas.

December 12, 1890.

Appeal from district court, Cass county; JOHN L. SHEPPARD, Judge.

A. H. Field, for appellant. W. P. McLean and O'Neal & Eberhardt, for appellee.

GAINES, J.

This suit was brought by appellee against the appellant to recover damages resulting from a failure on part of the defendant corporation to make prompt delivery of a message informing the plaintiff of the serious illness of his mother. There was a delay of two days in delivering the dispatch, and the plaintiff, upon its receipt, went at once to his mother's bedside, and found her unconscious, from which condition she never recovered. She died within about one hour after his arrival. The message was written upon one of the company's blanks, and was signed and handed to tis agent for transmission by a brother of the plaintiff. The blank was intended for night messages, and contained a stipulation to the effect that the company should not be liable for damages resulting from the nondelivery, or for delays in the delivery, of the dispatch, unless the claim for such damages should be "presented in writing within thirty days after sending the message." Just below the conditions, and just above the message, were the following words: "Send the following night message, subject to the above terms, which are hereby agreed to." The court found that the plaintiff's claim for damages was not presented until ____ of April, 1889, which was more than 30 days after the message was delivered for transmission, and more than 30 days after the damages accrued. The message was presented for transmission at night, but the agent of the company informed the sender that it could not be sent that night, because the company's offices were then closed by reason of its being Sunday. It was then agreed that it should be delivered next morning. The price paid was 25 cents, which was stated in the blank to be the price of a night message, and the lowest charge for any service. The court found that "said telegram was written on a night-message blank of defendant company," but seems to have concluded that, by reason of the agreement to send it next day, the conditions indorsed upon the blank did not become a part of the contract. This, however, is not clear. The finding which bears upon this question is "that if the contract with defendant company and Dugger Culberson was that the telegram above referred to was a night message,...