Western Union Tel. Co. v. Houghton

• Decision Date: 15 December 1891
• Citation: 17 S.W. 846
• Parties: WESTERN UNION TEL. CO. v. HOUGHTON.
• Court: Texas Supreme Court

17 S.W. 846

WESTERN UNION TEL. CO. v. HOUGHTON.

Supreme Court of Texas.

December 15, 1891.

Commissioners' decision. Section B. Appeal from district court, Upshur county; FELIX J. McCORD, Judge.

Action by John B. Houghton against the Western Union Telegraph Company for failing to deliver a telegram. Judgment for plaintiff. Defendant appeals. Reversed.

A. H. Field, for appellant. W. R. Camp, J. L. Camp, and H. Chilton, for appellee.

GARRETT, P.J.

This was a suit for damages for failure to deliver the following telegram: "Gilmer, Tex., January 13, 1889. Mr. John B. Houghton, care Mr. Basal, Rusk, Cherokee county, Texas Lush is worse; come home. LAURA HOUGHTON." Lush was the child of John B. and Laura Houghton, who resided at Gilmer. The father was at Rusk at work as a carpenter, and boarded with a man by the name of Bouthwell, who kept a boarding-house about 200 yards from appellant's office at Rusk. Houghton had requested his wife, in case it should be necessary, to address him in care of Mr. Bouthwell, but it seems that the name was misunderstood, and erroneously written "Basal." There was no such person as "Basal" in Rusk. Appellant admits that the message was sent to Rusk, and there held by appellant, and not delivered. There was a trial before a jury, which returned a verdict in favor of the appellee for $4,500.25, for which judgment was rendered. Some seven assignments of error appear in the record, but we think the case turns upon two questions: (1) Was the defendant's obligation promptly to deliver the telegram limited to such delivery to the person to whose care it was sent? (2) If not so limited, and the defendant is liable in this case in damages for failure to deliver to the plaintiff, was the amount of damages assessed by the jury excessive?

It is the duty of a telegraph company to make delivery of a telegram in due time, to the proper person, and it is bound to due care and diligence in its undertaking. There is a prima facie obligation resting on the company to make an actual personal delivery without delay to the person to whom the message is addressed. If, in the exercise of due diligence to find him, the company's messenger is unable to do so, the company might perhaps be under obligation to keep the message at the office, and mail a notice thereof to the address of the person to whom it is sent. Defendant was under obligation to find the person to whom the message was directed, and would be liable for a negligent breach of this duty. Scott & J. Tel. §§ 180, 186, 187; Gray, Comm. Tel. § 23. There does not seem to have been any effort to find the plaintiff. The only evidence offered by the defendant to excuse its failure to deliver the telegram was that of M. N. Dial, who testified that he lived in Rusk in January, 1889, and was in the railroad business; that he had lived near Rusk 23 years, and never knew "Basal;" that he knew Jack Bouthwell, but, if he ever kept a boarding-house, he did not know it. He was a clerk in the telegraph office, and could have delivered the message to Bouthwell, who lived 200 yards from the telegraph office. That he did not know Mr. Houghton, and that Rusk was full of strangers at that time going to New Birmingham, which was about one and a half miles from Rusk. Plaintiff had been in Rusk about three or four weeks, working at the carpenter's trade. He was at work within 200 yards of the telegraph office, and had been about the depot a good deal, and had spoken to the operator several times. His boarding-house was in sight of the office. He was very well acquainted in Rusk. He knew the sheriff, county clerk, and postmistress, and they also knew him. The hackmen and liverymen knew him, and he also knew them. His wife had relatives there. He had understood Bouthwell's name to be Basal. When he left home he told his wife to keep him posted in regard to the health of his family. As the telegram was addressed to the care of another person than the addressee, a delivery to such person would have been a compliance with the obligation of the defendant. Telegraph Co. v. Young, 77 Tex. 245, 13 S. W. Rep. 985. This case is relied on by the appellant as authority for limiting its obligation to deliver the telegram to the person to whose care it was addressed; but an examination of the facts will show them to be very different from those in the case under consideration. In ...