Western Union Tel. Co. v. Bennett

• Decision Date: 08 December 1892
• Parties: WESTERN UNION TEL. CO. v. BENNETT.
• Court: Texas Court of Appeals

21 S.W. 699

WESTERN UNION TEL. CO. v. BENNETT.

Court of Civil Appeals of Texas.

December 8, 1892.

Appeal from district court. Grimes county; Norman G. Kittrell. Judge.

Action by John G. Bennett against the Western Union Telegraph Company to recover damages resulting from a delay in the delivery of a message. Plaintiff had judgment, and defendant appeals. Reversed.

Field & Homan, for appellant. H. H. Boone, for appellee.

WILLIAMS, J.

Appellee resided at Navasota, Grimes county, and his brother, Henry, resided at Allen, in Collin county. On the 24th day of March, 1890, the wife of Henry Bennett delivered to appellant, at Allen, the following message, addressed to appellee at Navasota: "Come at once. Henry is dying." The message was transmitted at once to Navasota, and was received there at 8:50 o'clock A. M. of the same day. It was not delivered to appellee until the afternoon of March 26th. On that day, before its delivery, appellee had learned from other sources of the dangerous illness of his brother, and went to appellant's office in Navasota for the purpose of ascertaining by wire his condition, and the message was then delivered to him. Thereupon he sent over appellant's line a dispatch to his brother's wife, asking information as to her husband's condition. This message was not delivered to Mrs. Bennett until next day. Appellant, failing to receive an answer, took the train at Navasota the night of the 26th, and went to Allen, when he learned that his brother had died on the 25th, and was buried on the 26th. He brought this suit to recover damages for the failure to deliver both messages. At the trial he was permitted to introduce, over appellant's objections, the copies of the messages delivered to him and to his sister-in-law respectively. The objection was that the original messages delivered to appellant were the primary evidence. Appellee also introduced evidence of the sending of the message from himself to Mrs. Bennett, and the date of the delivery of same, and of the fact that no answer was received, which was objected to by appellant on the ground that it was irrelevant, and calculated to mislead the jury. The court charged the jury that they would not consider the evidence as to the last message, and that appellee could not recover damages growing out of it. Appellant sought to excuse its failure to deliver the message to appellee by showing that he was unknown to its agents, and that they used due diligence to find him in Navasota, and failed to do so. The evidence upon this point was conflicting. There was positive testimony in behalf of appellee that he had resided in Navasota for three months, was well known there, and was at home in town, and could have easily been found, during the whole of the 24th, 25th, and 26th of March; that his residence was in fact pointed out to appellant's messenger while the latter was searching for him. This last fact was denied by appellant's witness, and there was testimony strongly tending to show that appellee left Navasota on the 23d, and went to a neighborhood about 25 miles away, and did not return until the evening of the 25th. It is not controverted that appellee's wife was at home during this time. Appellant, however, claims that its agent could not learn anything of such person in Navasota. It was shown that about noon of the 24th appellant's messenger reported to its operator at Navasota that appellee could not be found, and that the operator notified appellant's agent at Allen, the latter informed Mrs. Bennett, and she then informed the operator at Allen that appellee was not in Navasota, but was near Bryan, and sent him a message over appellant's line to that place. The admission of the copies of the telegrams delivered by appellant's agents, on which the suit is founded, was not error. Reliance Lumber Co. v. Western Union Tel. Co., 58 Tex....