Western Union Tel. Co. v. Lyles

• Decision Date: 05 June 1897
• Parties: WESTERN UNION TEL. CO. v. LYLES.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 636

WESTERN UNION TEL. CO. v. LYLES.¹

Court of Civil Appeals of Texas.

June 5, 1897.

Appeal from district court, Lamar county; E. D. McClellan, Judge.

Action by W. J. Lyles against the Western Union Telegraph Company. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Wilkins & Vinson, for appellant. Park & Birmingham, for appellee.

FINLEY, J.

This suit was instituted in the district court of Lamar county, Tex., on June 16, 1896, by W. J. Lyles against the Western Union Telegraph Company for damages in the sum of $1,995, for the alleged negligent failure on the part of said company to carry out a contract with plaintiff to transmit and deliver to him at Paris, Tex., a telegraphic message dated Texarkana, Ark., March 5, 1896, reading: "W. J. Lyles, Paris, Texas: Ma died today at 12:30 o'clock p. m. [Signed] Ida Crow,"—whereby he was deprived of the solace and comfort of being present at the burial of his sister, Mrs. Jones, referred to as "Ma" in said telegram. The appellant appeared and answered said suit, and pleaded a general denial, and specially denied under oath the execution of any such contract as alleged in plaintiff's said petition; and further specially answering set up a provision in said contract, if entered into, pertaining to the delivery of messages outside of established free-delivery limits of the appellant. Said cause was regularly called for trial on November 14, 1896, before a jury, and resulted in a verdict and judgment for $500 in favor of plaintiff. Appellant moved for a new trial, which was overruled, excepted to the court's ruling, and in open court gave notice of appeal to the court of civil appeals for the Fifth supreme judicial district at Dallas, and in due time filed an appeal bond and assignment of error, and brings the cause to this court for a revision of the errors assigned.

The following are the material facts bearing on the several assignments of error, which the evidence established: Mrs. Jones, sister of plaintiff, died at Texarkana, Ark., on March 5, 1896, at about 12:30 p. m., and was buried three miles from Texarkana about 1 o'clock on March 6th. Immediately after her death Mrs. Ida Crow wrote several telegrams on pieces of white paper, and gave them to her husband to take to the office of appellant to be transmitted to several relatives of Mrs. Jones. She gave said W. T. Crow $2 to pay for the transmission of said messages. Crow carried the messages to the office of appellant, and handed them to Prudhomme, one of appellant's operators, who refused to accept same written as they were on white paper, and requested said Crow to transfer them to the regular blanks used for that purpose by the said company which were furnished to said Crow. Four messages were transmitted and promptly delivered to the addresses of the same, as follows: Z. H. Jones, Yoakum, Tex.; J. M. Lyles, Ft. Worth, Tex.; W. R. Manly, Orange, Tex.; and Woods Wilson, De Kalb, Tex.; and the charges for transmitting and delivering same were paid, amounting to $1.50. The message to W. J. Lyles, Paris, Tex., if any, was not received at the office of the appellant at Paris, and was not delivered to him. Nothing was paid to appellant's agent at Texarkana except the regular tariff on said messages, and the appellant was not notified where the addressee resided in Paris, if there was any message filed for delivery to him. The free-delivery limits of appellant in Paris were one mile each way from its said office. The only train plaintiff, W. J. Lyles, could have taken in order to have been present at his sister's funeral, left Paris between 3 and 4 o'clock on March 5th for Texarkana. There was another train from Paris to Texarkana at about 10 o'clock on the next day, March 6th, that reached Texarkana between 2 and 3 o'clock p. m. Plaintiff's sister had been sick for a number of years, but he had not been to see her, though he did correspond with the members of his sister's family, and was kept advised as to her condition. Plaintiff would have gone to the funeral of his sister if he had received the telegram. W. J. Lyles, on the 5th of March, resided more than one mile from the office of appellant in Paris, Tex. W. G. Stannard, manager for appellant at Paris, testified: "Do not mail a telegram to the addressee, when we get one directed to a person outside of the delivery limits. We notify the sending office that the addressee resides outside of the delivery limits, and we make an effort to find the addressee in town, in addition to that. We do not deliver messages outside of the free-delivery limits unless there is some special provision made. If the message in question had been received by us, we would have attempted to find the addressee in town; and if he could not have been found we would have notified Texarkana that the addressee lived outside of the delivery limits, and awaited a reply from them to know what to do with it." We will state the conflicting evidence bearing on the assignment of error herein in the language of the witnesses. J. B. Prudhomme testified for appellant: "The telegrams were brought into the office by a gentleman, and were offered to me on the inside of the counter. Saw they were on white paper, and told him he would have to write same on the company's blanks, and handed him a batch of blanks. He took the blanks, and retired a little distance from me down the counter, and witness remained standing where he was. The party came back with four telegrams written on the company's blanks. One was addressed to Yoakum, Tex., one to Orange, Tex., one to Ft. Worth, Tex., one to De Kalb, Tex. The telegram to Orange was .50, the one to Ft. Worth .25, the one to Yoakum .50, and the one to De Kalb .25. The charge to Paris, Tex., would have been .25. Soon as the money was paid witness registered the messages and amount...