Western Union Tel. Co. v. Cooper

• Decision Date: 14 June 1902
• Parties: WESTERN UNION TEL. CO. v. COOPER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

69 S.W. 427

WESTERN UNION TEL. CO. v. COOPER.¹

Court of Civil Appeals of Texas.

June 14, 1902.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by J. H. Cooper against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The contract of transmission as shown by the message blank stipulated that the company would not be liable for damages as statutory penalties in any case where the claim was not presented in writing within 90 days after the message was filed with the company for transmission.

Wilkins & Vinson, for appellant. Cruce & Cruce and Potter & Potter, for appellee.

STEPHENS, J.

This appeal is from a verdict and judgment for $675 in a mental-anguish case.

Upon the death of appellee's mother, the following telegram was sent to him at Lebanon, via Marietta, Ind. T., from Windom, Tex., by his brother, who paid all charges, including that for special delivery from Marietta to Lebanon: "Ma dead. If you can reach here by two o'clock, come." It was received for transmission and delivery by appellant about noon, April 4, 1901, and transmitted to Marietta, Ind. T., about two hours later, but no effort was made to deliver it to appellee till between 12 and 1 o'clock of the day following, and it was not delivered to him until long after the burial of his mother, which took place at Windom, Tex., about 4 o'clock p. m., April 5th. If any reasonable effort had been made by appellant to deliver the message after it reached Marietta, it would have accomplished the purpose for which it was sent. In other words, actionable negligence on the part of appellant after the message reached Marietta was conclusively established; which answers the objection to the charge made in the third assignment.

In receiving the message for transmission and delivery, appellant understood, and appellee, under the circumstances shown in evidence, would have understood, the words "by two o'clock" to refer to 2 o'clock p. m. of the following day; and there was no error in permitting appellee, so far as he was concerned, to so testify, over the objection urged in the first assignment. Telegraph Co. v. Norris (Tex. Civ. App.) 60 S. W. 982.

Nor did the court err in permitting witness Claiborne, to whom the message was finally handed for delivery by appellant's agent at Marietta, to testify, over the objection urged in the second assignment, as follows: "At the time he (the agent at Marietta) gave me the message, he said he received it the day before about 2 o'clock, and didn't have time to see any person to get to deliver it. He said he was very busy, and asked would I deliver the message. I said I would. He said he received it the day before, Thursday, about 2 o'clock, and didn't have time to get out and see about sending it, and he asked me to take it. I said I would, and he said charge Cooper what I pleased. I taken it out Friday evening, and forgot it. I never delivered it, and kept it in my pocket from 1 o'clock on Friday till Saturday evening about six o'clock. I forgot it. I told a man by the name of Gray to take it to him, and I guess he delivered it to Cooper."

The agent of the telegraph company seems to have been then so far acting for his principal as to render his declarations admissible; but, however this may be, the only objection made was that the testimony was immaterial and irrelevant. What seems to be appellant's chief contention is embodied in the fourth assignment, reading: "The court erred in refusing to give to the jury defendant's special charge No. 2, to the effect that the undisputed testimony showed that the contract sued on was entered into in the state of Texas, and was broken, if at all, in the Indian Territory, and that damages for mental suffering, unaccompanied by physical injury, could not be recovered in the Indian Territory, and that the jury should therefore find for the defendant." Two decisions of this court, Telegraph Co. v....