Western Union Tel. Co. v. Feegles

• Decision Date: 20 December 1889
• Citation: 12 S.W. 860
• Parties: WESTERN UNION TEL. CO. <I>v.</I> FEEGLES.
• Court: Texas Supreme Court

12 S.W. 860

WESTERN UNION TEL. CO.

v. FEEGLES.

Supreme Court of Texas.

December 20, 1889.

Appeal from district court, Tarrant county; R. J. BOYKIN, Judge.

Stemmons & Field, for appellant. Byron Johnson, for appellee.

HENRY, J.

Plaintiff's petition charges: That on the 22d and 23d days of July, 1887, his wife, S. A. Feegles, was at her home in Fort Worth, Tex., and on the same day her son by a former marriage, Lee Mahone, and his wife, Bertha Mahone, were residing in the town of Malvern, in the state of Arkansas. That on the night of July 20th of said year said Lee Mahone was fatally wounded in said town of Malvern, and he grew suddenly worse on the morning of the 22d day of said month. That before that time the wife of plaintiff had requested the wife of her son to promptly notify his mother of any sickness, accident, or misfortune that might befall her son during his absence from Fort Worth, in order that she might have the consolation of being with him under such circumstances, or attend his burial, should he die; and that the son's wife promised to give his mother such information. The petition avers that, in compliance with said request and promise, the said Bertha Mahone, as the agent of said S. A. Feegles, on the 22d July, 1887, caused to be delivered to defendant, at the telegraph office in Malvern, for transmission and delivery to S. A. Feegles, at her place of residence in Fort Worth, a telegram in the following words and figures: "Malvern, Ark., July 22, 1887. To S. A. Feegles, cor. Seventeenth and Calhoun Sts., Fort Worth, Texas: Come to Malvern first train. Lee is very dangerously wounded. [Signed] BERTHA MAHONE." That the telegram was filed with defendant, in its telegraph office in Malvern, at 7 o'clock A. M., July 22, 1887, and the fee for its transmission and delivery was paid by the sender; and the defendant, in consideration of the premises, promised to immediately transmit and deliver the message. Plaintiff represents that the son died at 11 o'clock A. M. on the day the message was sent, from the effects of his wounds; and that, failing to receive an answer to her telegram, and believing, therefore, that the mother of her husband was away from her home, and had not received her telegram, and being "justified" by the warmth of the weather, and the absence of any necessity for delaying it, the body was interred at 10 o'clock P. M. of the day of the death. That if the telegram had been promptly transmitted and delivered, and...