MARR, J.
The statement of the case as made in the appellant's brief, with some slight alterations which we have made, will disclose substantially the case. Some omissions therein will be hereinafter supplied from the record. The statement is as follows: "This suit was begun by Otto Rosentreter filing his petition on February 13, 1890, in the district court of Washington county, Texas, asking for $2,000 damages against the Western Union Telegraph Company for the grief, disappointment, and mental anguish suffered by the said Otto Rosentreter, caused by the Western Union Telegraph Company [negligently] delaying to promptly transmit [and deliver] a certain telegraphic message from the town of Lyons, in Burleson county, Texas, to the appellee in the city of Brenham, Texas, whereby the said Rosentreter failed to reach Lyons in time to attend the funeral of his sister Emma, and `give comfort and consolation to his aged mother in an hour of great disappointment.' The message in question was filed for transmission at Lyons, Texas, on April 7, 1889, — it being Sunday. The message was written by August Grabbo, and handed by him to defendant's operator at Lyons, George A. Smith. It reads as follows: `To Otto Rosentreter, care of Louis Grassmuck, Brenham: Emma died last night. Will be buried this evening. [Signed] AUGUST SCHOPPE.' The message was handed to Operator Smith about eight o'clock on the morning of the 7th by August Grabbo, and at the time Smith told Grabbo that the wire was crowded with train orders, and also that it was Sunday, and the Brenham office was closed between the hours of ten o'clock A. M. until four o'clock P. M., so that the message would probably not be delivered before four o'clock that afternoon. Grabbo replied to do the best he could with it. Operator Smith did not know Otto Rosentreter, August Schoppe, or Emma, or what relationship, if any, existed between the Emma mentioned in the message and Otto Rosentreter, or that appellee had an aged mother to comfort; and nothing was said at the time of filing the message as to any relationship, or that Otto Rosentreter was expected up on the noon train; August Grabbo testifying that he thought the message explained itself. Operator Smith testifies that he remained at his instrument from eight o'clock A. M. until two o'clock P. M., endeavoring to transmit the message, with the exception of a short time he was attending to the mail and his duties as agent; but was unable to obtain control of the wire to transmit the message until two P. M. on account of its being in charge of the train dispatcher, who was constantly using it for sending train orders; there being a rush of stock. The message had to be sent to Galveston and `relayed' to Brenham. The Brenham office was closed from 10 A. M. until 4 P. M. The message reached Brenham about 4 P. M. and was promptly delivered to Louis Grassmuck, (and by him to appellee, 4:15 P. M.) The train going from Brenham to Lyons left Brenham about eleven o'clock A. M., and reached Lyons, — a distance of nineteen miles, — in about forty-five minutes. Emma, the sister of appellee, died at her home about a mile from Lyons, at about six o'clock on the evening of the 6th of April, 1889, and the message, about the delay in the delivery of which this suit was brought, was not filed for transmission until about eight o'clock on the morning of the 7th of April, over twelve hours after the death of the said Emma. The appellee testified that he was living in Brenham, — only nineteen miles from his sister, or a ride of only forty-five minutes, — and that he had not visited his sister for about three months before her death, though he testified that he was expecting to hear of her death at any moment, and could easily have obtained permission of his employer to visit her; that he did not go to Lyons for several weeks after the death of his sister, Emma, though he could have easily obtained the permission of his employer, Mr. Grassmuck, to do so. The cause was tried by a jury, March 10, 1890, and verdict and judgment for appellee for $1,000."
It is deemed proper to insert in this connection the balance of the facts proved which are proper to be considered in the solution of the questions presented on this appeal. The following from the brief of appellee is found to be substantially correct. "The telegram was delivered to the operator at Lyons, a station nineteen miles from Brenham, at 8 o'clock A. M., and was delivered in Brenham at fifteen minutes past 4 P. M. The regular passenger train passed Brenham at that time about 11:30 A. M., and arrived at Lyons about 12.30 P. M. The witness August Schoppe testified that Emma, the sister of appellee, died near Lyons on the evening of the 6th of April, between 6 and 7 o'clock; that on the morning of the 7th of April he went to Lyons to send a dispatch to appellee; that he reached Lyons about 7 o'clock A. M., and found the telegraph office closed; that he went to August Grabbo, and requested him to deliver it to the operator when he came down to the office; that the funeral was postponed until evening, so that the appellee could be present. August Grabbo testified that he delivered the telegram to the operator as soon as the office was open, — between 8 and 9 o'clock; that he went to the office, asked for a blank, wrote the message, paid him 25 cents, and asked him if he could send it, and he replied by saying that he only had one instrument; that they only had certain hours to work on Sunday; that the wire was crowded, etc. Geo. A. Smith, the operator and witness for the appellant, testified that he remembered receiving the message from Grabbo, who requested him to send it as soon as possible. It was on Sunday, and the Western Union office at Brenham was open from 7 to 10 A. M. and from 4 to 6 P. M., that he had but one wire, and it was constantly in use by the dispatcher, who was using it all the time for train orders.
`I told Grabbo the office was closed during certain hours on account of it being Sunday, and that I did not think it could possibly be delivered before 4 or 5 o'clock, as it had to be relayed at Galveston, and I thought the Brenham office would be closed from 10 o'clock to 4.' That he left his instrument about half an hour attending to the mail and duties as station agent. `The wire was crowded with railway business. We often have such a rush.' That if the other office had been doing business in Brenham it might have been sent there. `I could send a train order, but could not get the wire for messages.' That the dispatcher controls the wire, and whenever he wants an office he calls them. He can deliver the wire to any office. Any office can communicate with him at any time. That ten minutes would be a reasonable time to send a message from Lyons to Brenham via Galveston. That he could have communicated with the depot at Brenham over the railroad wire, but could not have handled Western Union business over it. That he did not try for this message. That the wire belonged to the Western Union Company. That he could have had communication with the dispatcher, who could have given him control of the wire to have sent this dispatch. That he did not try to get in communication with the dispatcher, and tell him that he had an important message to get off. An important message is a `rush message.' A message announcing the death of a party is called a `rush message.' This message announced a death. That he was both railroad agent and operator at Lyons, and his duties were somewhat double. From the telegram he thought they expected Otto to come on the train. That if he had had another wire communicating directly with Brenham, he thought he could have got the message off between 8 and 11 A. M. Since that time another wire has been put up."
Again, on the question of damages, it was proved that "the appellee was working for Louis Grassmuck in Brenham. His sister was in bad health, and he had made arrangements to be telegraphed for in the event of her death. Appellee testified that he was very much disappointed and grieved at not being able to be present at the funeral of his sister. That he would not have missed it for anything in the world. The witness Grassmuck testified that he delivered the telegram to appellee. That he seemed very much grieved and distressed at not being able to be present at his sister's funeral. That they went down to the depot to see if he could get a freight train to go to Lyons on. That he could not get a freight, and he seemed very much distressed. `He cried, and said he wished he could have gone.' The witness August Schoppe testified that he expected the appellee up on the train, and was at the depot to meet him, and that the funeral was put off until after the arrival of the train, so he could be present."
The first assignment of error relates to the refusal of the court below to quash the citation. In this action of the court we find no error. The citation required the defendant itself to appear and defend the suit, not its agent, as claimed by the appellant. The second assignment of error questions the refusal of the defendant's application for a continuance. The court did not err in overruling it. The citation was served on the defendant's agent upon the 14th day of February, 1890, yet no interrogatories were filed to be propounded to the witness, who resided in Galveston county, until the 10th day of March of that year, and which was the day when the case was tried. The district court had convened on the 3d of March, and the case was on the 7th set down for trial on the 10th. Clearly appellant made no sufficient showing of diligence, under the circumstances, as would entitle it to a continuance as a...
