Western Union Tel. Co. v. Smith

• Decision Date: 28 February 1894
• Citation: 26 S.W. 216
• Parties: WESTERN UNION TEL. CO. v. SMITH.
• Court: Texas Court of Appeals

26 S.W. 216

WESTERN UNION TEL. CO. v. SMITH.

Court of Civil Appeals of Texas.

February 28, 1894.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Action by Horace F. Smith against the Western Union Telegraph Company for damages for delay in delivering a dispatch. Judgment for plaintiff. Defendant appeals. Reversed.

Field & Homan, for appellant. McClellan & Prince and Jink Evans, for appellee.

RAINEY, J.

On May 13, 1891, W. S. Smith delivered to the Pacific Postal Telegraph & Cable Company, at Arlington, in the state of Washington, for transmission to his brother, Horace F. Smith, appellee, at Corsicana, Tex., the following telegram: "Arlington, Wn., May 13, 1891. Horace F. Smith, 219 W. Collin St., Corsicana, Texas: Father died last night at Steilacoam. Have you any wishes in regard to his funeral? Answer quick. W. S. Smith." On the same day this telegram reached Corsicana over the line of the Western Union Telegraph Company, but was not delivered until about the 13th day of June, 1891, when appellee called for it at appellant's office at Corsicana. Appellee brought suit against the Western Union Telegraph Company for the failure to deliver said message, alleging, as a basis for damages, that he was deprived of the privilege of attending his father's funeral, and giving directions as to the time, place, and manner of same; and also deprived of the privilege of having the remains prepared for shipment to New Orleans, La., and placing them beside those of his deceased mother. Appellant pleaded a general denial, and specially pleaded "contributory negligence on the part of the sender, who was the agent of plaintiff, in failing to correctly and properly address the message, and in placing upon the same an address other than the true address of plaintiff, whereby the agent and employes of defendant were misled as to the whereabouts of plaintiff, and so were unable to deliver the message to him." A trial was had, which resulted in favor of appellee for $1,000.

On the trial below, plaintiff was allowed, over the objection of defendant, to introduce the message received by him from defendant's agent on June 13, 1891, and to prove by W. S. Smith that he delivered the message to the Pacific Postal Telegraph & Cable Company, at Arlington, Wash.; the ground of objection being that it was secondary, and not admissible in the absence of any effort to produce the original, or to account for its nonproduction, it appearing that the original is in the possession of the Pacific Postal Telegraph & Cable Company, and not of this defendant. The testimony showed that the original was beyond the jurisdiction of the court, and could not be reached by its process, which was sufficient to permit the testimony of W. S. Smith as to its contents. This being a suit for the failure by defendant to deliver within a reasonable time the very message it delivered to plaintiff on June 13, 1891, the introduction of the message so delivered was legitimate as original evidence in appellee's behalf. There is no contention but what the message introduced was the one received by appellant, and its introduction cured any error, if any, that was committed by the admission of Smith's testimony. Reliance Lumber Co. v. W. U. Tel. Co., 58 Tex. 394; Telegraph Co. v. Bennett, 1 Tex. Civ. App. 558, 21 S. W. 699.

The following instruction was asked by defendant: "In order to recover in this case, it devolves upon plaintiff to prove that the defendant Western Union Telegraph Company adopted the contract by the Pacific Postal Telegraph & Cable Company, and thereby undertook to transmit and deliver the message to plaintiff; and you are instructed that it is not sufficient proof of such adoption that the message was received by defendant's agent at Corsicana." This charge was refused, and the court charged the jury that if the brother of plaintiff sent, and the defendant Western Union Telegraph Company received, the message described in the petition, and if defendant could have delivered it to plaintiff within a reasonable time, and failed to do so, plaintiff is entitled to recover for any injuries received by him. Appellant complains of this, and insists that it was necessary for plaintiff to show that appellant had adopted the contract made with the Pacific Postal Telegraph & Cable Company to transmit and deliver, as he had alleged such in his petition. As far as appellant is affected under the proof in this case, it is immaterial whether it adopted the contract made with the Pacific Postal Telegraph & Cable Company or not. It was its duty to receive, transmit, and deliver the message; and, having received and transmitted the same to Corsicana, the sole question for consideration is, did it use proper diligence to deliver the message to appellee. If so, it is not liable for damages. If it did not use such diligence, then it is liable. If appellant was entitled to any relief by reason of the contract with said telegraph and cable company, it should have set it up by appropriate pleadings. Having failed to do this, it will not be heard to complain. We conclude, therefore, that the court's action was proper in refusing and giving, respectively, the charges as above stated.

Appellant's seventh assignment of error is as follows: "The court erred in refusing the second instruction requested by defendant, and instructing the jury that the burden of proof was upon the...