Western Union Tel. Co. v. Redinger

• Decision Date: 29 May 1901
• Citation: 63 S.W. 156
• Parties: WESTERN UNION TEL. CO. v. REDINGER.
• Court: Texas Court of Appeals

63 S.W. 156

WESTERN UNION TEL. CO. v. REDINGER.

Court of Civil Appeals of Texas.

May 29, 1901.

Appeal from district court, Fannin county; E. S. Chambers, Judge.

Action by Joe Redinger against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Suit by appellee for damages for failure of defendant (appellant) to deliver telegraph message sent by Bernard Redinger, at St. Paul, Kan., to plaintiff, at Bonham, Tex., February 18, 1898, reading, "Mother not expected to live," whereby he was not privileged to be at her bedside during life, nor at her funeral after death. Defendant pleaded contributory negligence, and specially the contract of transmission; that it was provided that the message was to be delivered only within the free-delivery limits of defendant's office, one mile in every direction, unless a special charge for delivery was paid or guarantied for delivery outside of such limits, which was not done; alleging that plaintiff was outside of free-delivery limits in Bonham, and remained outside until it was too late to deliver the message. Defendant also set up that its office hours were from 8 a. m. to 8 p. m. The suit was for $1,900. The trial resulted in verdict and judgment for plaintiff for $500, from which defendant has appealed.

Findings of fact: We find the facts as follows: Plaintiff's brother, aged 23 years, resided near St. Paul, Kan. On February 19, 1898, between 10 a. m. and 12 m., he sent to plaintiff, from St. Paul, over defendant's telegraph line, to the plaintiff, at Bonham, Tex., the message as alleged, "Mother is not expected to live." She died at 7 p. m., and was buried February 22d, at 10 o'clock a. m. The plaintiff was an employé of the Texas & Pacific Railway Company as fireman, and lived at Bonham, and had been living there three years, and boarded with Mr. Seal, at the Crockett House, and had boarded with him (Seal) three years,—two years at the Tennessee House. After being out on duty, he arrived in Bonham about 3:20 p. m. the afternoon of the 20th, on Sunday, and received the telegram about 4 p. m. same evening. He was a fireman on the Texas & Pacific Railway. The Crockett House was situated 1½ blocks south of the public square in Bonham. On the 19th of February, 1898, he was out on a run to Ft. Worth. The messenger boy, Joe Morton, had the message, and was in the office of the hotel, and inquired of the proprietor if he knew Joe Redinger, and was answered in the affirmative, and was also told that he boarded at that hotel, but was not then there; that he was a fireman on the Texas & Pacific Railway, and was then in Ft. Worth. The boy asked no further questions, but turned, and went out, and no notice was left at the hotel of the message. If the proprietor of the hotel, J. T. Seal, had been informed of the message, he would have received it, and paid the charges, and had it sent to Redinger at Ft. Worth, in care of Richelieu Hotel, where Redinger stopped when in Ft. Worth; or Seal would have seen that the message was sent to Redinger wherever he could have been found along the railway on his run, Seal paying all expenses; and would have found out at the roundhouse where to address the message so as to reach him. Seal was authorized to look after plaintiff's mail, but had no instructions as to telegrams,— received and kept his mail all the time. Seal testified: "If he had told me that he had an important message for Redinger, I would have received it, paid all charges, and forwarded it to Joe Redinger, wherever he could have been found." Immediately after receiving the message on the 20th of February, he (plaintiff) applied for and obtained permission from the company to go to St. Paul to see his mother, and this permission would have been granted for the purpose at any time. Plaintiff received the message announcing the illness of his mother, as stated, on the 20th of February, about 4:30 p. m., dated at St. Paul, February 19, 1898. He had left Bonham on duty on the evening of the 18th, and reached Ft. Worth at 4 or 5 a. m. on the 19th. Went to the Richelieu Hotel, and after breakfast went to bed, and remained until in the evening. Learned that he would not go out, and went to bed, and remained there until the morning of the 20th, when he was called, and returned to Bonham, arriving there at 3:20 p. m., same day, 20th February, 1898. Got the message from the defendant's office about 4 o'clock same evening, and determined to go home at once, but concluded it had been so long since the message was dated it would be best to send a message (which he did) to his father, in these words: "2/20/1898. Mr. Charles Redinger, St. Paul, Kansas: How is mother by this time? If not too late, advise." This was about 5 o'clock on the 20th. No reply came that evening or night. Inquired at defendant's office next morning as to his message sent, and was told that his father was out in the country about four miles, and there would be $2 extra charges, and was asked if he would guaranty those charges, and he replied that he would. He then advised that the message be sent to Jacob Koenig, and deliver it to him. He then got an answer at 10:30 as follows: "2/21/98. Joe Redinger, Bonham, Texas: Mother died last night at 7 p. m. [Signed] Bernard Redinger." He then made every effort to reach St. Paul as soon as possible, reached there a few minutes after 1 o'clock, and his mother had been buried since 10 o'clock that morning, and he did not get to see her at all. He had never received a telegram before that time at Bonham, and had had no occasion to say anything to Mr. Seal about receiving messages, but he always received his letters at the hotel. The foreman at the roundhouse...