Western Union Tel. Co. v. Smith

• Decision Date: 24 October 1894
• Citation: 30 S.W. 937
• Parties: WESTERN UNION TEL. CO. v. SMITH.
• Court: Texas Court of Appeals

Page 937

30 S.W. 937

WESTERN UNION TEL. CO. v. SMITH.

Court of Civil Appeals of Texas.

October 24, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by W. H. Smith against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff, W. H. Smith, sued for damages for mental anguish suffered by him by reason of delay in the delivery of a telegraphic message, and, upon the trial, recovered a judgment for $862.50; and from this judgment the telegraph company has appealed, and assigned errors. On March 2, 1888, Wesley Smith, a brother of plaintiff, delivered to the Central Texas & Northwestern Telegraph Company, at Waxahachie, Tex., the following message for transmission, paying therefor the sum of 50 cents: "Waxahachie, Texas, March 2, 1888. W. H. Smith, 430 South Harwood St., Dallas, Texas: Father dangerously ill. Come at once. Wesley Smith." At this time, plaintiff lived in Dallas, at 430 South Harwood street, one of the principal residence streets of the city; and his father lived nine miles from the town of Waxahachie, Tex. This message was transmitted by the Central Texas & Northwestern Telegraph Company to the operator of the Western Union Telegraph Company at Ennis, who did the relaying for the Central Texas & Northwestern Telegraph Company, to be forwarded by the Western Union Company. The message was forwarded over the Western Union lines from Ennis to Dallas, and the message was received by the Dallas office of the Western Union Company at 2:56 p. m., March 2, 1888, — the day it left Waxahachie. The message was delivered to the addressee at 8 a. m., March 5, 1888. There was an arrangement between the two companies to handle each other's messages, and divide the fees paid therefor. At the end of each month such division was made. Plaintiff repaid the charges to Wesley Smith and wife. At the time the message was sent, plaintiff's father was dangerously ill, from which he died March 4, 1888, at 11:15 o'clock, p. m. As soon as plaintiff got the telegram he left, on the first train, to go to his father's bedside, but when he arrived his father was dead. The message could have been delivered to plaintiff on the afternoon of March 2, 1888, — more than two days before his father's death, — by the exercise of reasonable care and diligence on the part of the servants and agents of the Western Union Telegraph Company, and the failure to so deliver it was negligence on the part of said company. By this negligence, plaintiff was deprived of being with his father during his last illness, and at his death, on account of which he suffered mental anguish. The message was written upon a Western Union Telegraph Company receiving form, when delivered to plaintiff.

Field & Homan, for appellant. J. G. Robertson and W. A. Kemp, for appellee.

FINLEY, J. (after stating the facts).

The court refused an instruction requested by defendant to the effect that plaintiff, having sued on an alleged contract made with the defendant at Waxahachie for the transmission of the message from that point, and its delivery to plaintiff at Dallas, could not recover on proof that the message was delivered to the agent of the Central Texas & Northwestern Telegraph Company at Waxahachie, and not to defendant. But the court charged the jury, in substance, that if the defendant company had received the message at Dallas for delivery, and negligently failed to deliver it to plaintiff, thereby preventing him from being with his father before his death, and during his last illness, plaintiff was entitled to recover. It is alleged that there is a fatal variance between the pleading and proof. This is the second appeal in this case. The result of the former appeal will be found reported in 84 Tex. 359, 19 S. W. 441. The question here raised appears to have been the only question involved upon the former appeal. The trial court, after hearing the evidence, instructed the jury to return a verdict for defendant on account of this supposed variance. The action of the trial court was held to be erroneous, and for this reason alone the judgment was reversed, and the cause remanded for another trial. The allegations in plaintiff's pleadings charging the defendant company with receiving the message for delivery, and negligently failing to deliver it, were doubtless treated as the essential elements of the cause of action, authorizing a recovery upon sufficient proof. A majority of this court regard this question as authoritatively settled upon the former appeal adversely to appellant. The second trial was had without any change in the pleadings, and the same question is now presented, and it need not be further considered.

It is insisted, under the fourth assignment of error, that there was no evidence showing that plaintiff could have reached his father before his death, had the message been promptly delivered, and that the court erred in submitting that issue. The evidence shows that plaintiff's father lived nine miles from Waxahachie, Tex., and plaintiff resided at Dallas, Tex.; that the message was received at Dallas by defendant company at 2:56 p. m., March 2, 1888. The message was not delivered until 8 a. m., March 5th. It also shows that it would take 1½ or 2 hours to go from Waxahachie to plaintiff's father, nine miles, on horseback or in wagon. It shows that plaintiff "did not wait for the regular passenger train for fear his father would die before he could reach him, but took the first train, which was a freight train, and went to his father as soon as he could. When he got there he was dead." The locations of the cities of Dallas and Waxahachie, the distance between them, and the means of transportation by railroad from one to the other, are matters of common knowledge, upon which the jury were authorized to reach a conclusion as to how long it would take a person to go from one place to the other. It is certainly no stretch of judicial cognizance to assume that a person could go from Dallas to Waxahachie — a distance of about 30 miles — in less than two days, and then go 9 miles in the country in less than a half a day. There is no merit in the assignment. Wright v. Hawkins, 28 Tex. 473; State v. Jordan, 12 Tex. 207; Carson v. Dalton, 59 Tex. 502; Miller v. Railway Co., 83 Tex. 520, 18 S. W. 954; Gulf, C. & S. F. R. Co. v. State, 72 Tex. 410, 10 S. W. 81.

Sixth assignment of error: "The court erred in instructing the jury that `when it is shown by the evidence that the message was received at defendant's office in Dallas in time for the plaintiff to have reached his father before he died, had the same been delivered promptly within a reasonable time, and the same was not so delivered, then it devolves upon the defendant to show the reason for such failure to deliver, and to show that it has used such diligence to deliver as an ordinarily prudent person would have used, looking to the information contained in the message, before plaintiff's right to a recovery can be defeated.'" The fact that the message was received at the Dallas office 2½ days or more before its delivery; that appellee lived in Dallas, on a prominent street; and that his street number was given in the message, — were uncontroverted facts. The court charged the jury as follows: "And if from the evidence you find and believe that the defendant, through its agents and employés, was guilty of negligence in delivering the telegram, — that is, that they did not use that degree of diligence that an ordinarily prudent person would have done, taking into consideration the information contained in said message, — and by reason of said failure to deliver the plaintiff was unable to be at the deathbed of his father, when, had it been promptly delivered within a reasonable time, he could have reached his father before he died, then the defendant would be responsible, and the plaintiff would be entitled to a verdict at your hands; and the measure of damages, etc. * * * If, from the evidence, you find and believe that the defendant, through its agents and employés, used reasonable and proper care and diligence in delivering the message to plaintiff, then no recovery can be had, and your verdict should be for the defendant. It devolves upon plaintiff to show his right to a recovery in this case by a fair preponderance of testimony, but when it is shown by the evidence that the message was received in defendant's office in Dallas in time for the plaintiff to have reached his father before his death, had the same been delivered promptly within a reasonable time, and the same was not delivered, then it devolves upon the defendant to show the reason of such failure to deliver, and to show that it has used such diligence to deliver as an ordinarily prudent person would have used, looking to the information contained in the message, before plaintiff's right to a recovery can be defeated." We think the court correctly charged the law of the case. Telegraph Co. v. Smith (Tex. Civ. App.) 26 S. W. 218.

Seventh assignment of error: "The court erred in refusing to give the jury the sixth instruction requested by defendant, distinguishing between the suffering naturally resulting to plaintiff from the death of his father, and the additional suffering arising from delay in the delivery of the message." Defendant's sixth instruction, refused by the court, is as follows: "Plaintiff is not, in this case, entitled to recover any damages for suffering that would naturally have resulted from the death of his father, — that is, such suffering as he would have endured, even though the message had been promptly delivered; but, if entitled to recover at all, he can only recover for such additional suffering, if any, as he endured solely by reason of the delay in the delivery of the message, and his failure to reach his father before his death, and then only in case you find that such delay was occasioned by the negligence or fault of def...