Western Union Tel. Co. v. Rawls

• Decision Date: 05 April 1901
• Citation: 62 S.W. 136
• Court: Texas Court of Appeals
• Parties: WESTERN UNION TEL. CO. v. RAWLS.

62 S.W. 136

WESTERN UNION TEL. CO. v. RAWLS.

Court of Civil Appeals of Texas.

April 5, 1901.

Appeal from district court, Brazos county; W. G. Taliaferro, Judge.

Action by Mrs. L. W. Rawls against the Western Union Telegraph Company for failure of defendant to deliver a message. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Geo. H. Fearous and Norman G. Kittrell, for appellant. Ford & Ford and Armstrong & Nagle, for appellee.

GILL, J.

This suit was brought by the appellee, Mrs. L. W. Rawls, against the appellant telegraph company for damages alleged to have been caused by the negligent failure on the part of appellant to make timely delivery of the following message: "Wharton, Texas, June 4th, 1900. To L. W. Rawls, Bryan, Texas: Mother is dead. Come at once. [Signed] Robert Bythewood." A trial before a jury resulted in a verdict and judgment for appellee, and the telegraph company has appealed.

Appellee alleged that the agent of appellant at Wharton, Tex., promised and agreed that, if there was a night operator at Bryan, the message would be delivered the night of its date; that there was a night operator at Bryan, but that by reason of the negligence of the messenger boy who was intrusted with the delivery of the message it was not delivered until the following morning, which was too late for her to attend the funeral of her daughter, whose death was announced in the message. Defendant answered by general demurrer and general denial, and specially pleaded that when the message was accepted for transmission its office at Bryan had closed for the night, under a long-established rule as to office hours; the office at that point, by a rule of the company, being open from 8 a. m. until 8 p. m., and closed to the public from 8 p. m. until 8 a. m.; that the message was received and the contract made subject to the office hours thus established; that on the night in question the telegraph company had no night operator at Bryan, but the office was closed, and the force dismissed, prior to the receipt of the message for transmission. It was also pleaded in defense that, even if Mrs. Rawls had received the message on the night of the 4th, she was too ill to have gone to the funeral of her daughter, and for that reason would not have gone. It was also averred by appellant that Bythewood, the sender of the message, was guilty of contributory negligence in failing to append the prefix "Mrs." to the name of the person to whom the message was addressed; that, Mrs. Rawls being a woman, this failure to so address the message so contributed to the failure to deliver as that, but for the contributory negligence alleged, the message would have been promptly delivered on the night of its date. The facts are briefly stated as follows: The person whose death was announced in the message was the mother of Robert Bythewood, the sender, and the daughter of Mrs. L. W. Rawls, the person to whom it was addressed. The only means by which Mrs. Rawls could have reached Wharton in time to attend the funeral of her daughter was a train which left Bryan at about 3 a. m. of June 5th. The delay in the delivery of the message until 9 o'clock a. m., June 5th, rendered it impossible for her to attend the funeral. Appellant's office hours at Wharton were from 8 a. m. to 7:30 p. m. At 8:10 p. m., June 4th, Bythewood came to the office of appellant at Wharton for the purpose of sending the message heretofore set out, and another to a different point. Norris, the agent at Wharton, had been detained in the office later than the closing hour on account of a delayed train. When the message was tendered by Bythewood, Norris accepted it for delivery and transmission that night only in case the telegraph company had a night operator at Bryan,—a matter about which he was not informed. Bythewood stated to him that he thought they had a night operator at Bryan, but was not sure. Thereupon Bythewood had Norris to write the message for him as above set out. Norris says he addressed it just as Bythewood told him to, and did not know L. W. Rawls was a woman. Bythewood says he told Norris she was his grandmother. The message was promptly sent to the Houston relay office, which called up Dixon, the night operator of the railway company at Bryan, and asked him if he could handle a death message. He stated he would take it, and do the best he could. It was after office hours. According to appellant's evidence, the Western Union operator had gone home, and the messenger boy had been discharged for the night. Dixon took the message off the wires at 8:22 p. m., called the messenger boy back, and paid him out of his own pocket to try to deliver the message at once. The boy thereupon went to two hotels, a boarding house, a bakery, and a bank inquiring for Mr. L. W. Rawls, but failed to find any such person, or any one who knew any such person. He inquired of one Harman, who testified that he told the boy that he knew of no such man; that the only Rawls he knew was Mr. Cole's mother-in-law, Mrs. Rawls, and he thinks he mentioned her initials to the boy, but is not sure; that the boy stopped, and seemed to study a minute, and then went on away. The plaintiff is Mr. Cole's mother-in-law, but was not living at his house at that time. The boy reached his home at about 10 o'clock that night, and asked his father if he knew L. W. Rawls. His father answered that he did not, and told the boy to go to bed. The father was tax collector, and knew Mrs. L. W. Rawls, who had resided at Bryan many years, and was well known there. She then lived in sight of the telegraph office. The message was delivered the next morning at 9 o'clock, in the presence of Mr. Cole, who went to the office, and sent the following reply: "Mrs. Rawls quite sick. Cannot come." The Western Union Telegraph office and the railway telegraph office at Bryan are in the same room. The Western Union operator at that point is named Harris, and he remains on duty during office hours. The railroad operator is named Dixon, and he is on duty at night in the same room in which the Western Union office is. Appellant's evidence, standing alone, shows that Dixon was not in the employ of the telegraph company, but was employed solely by the railway company. During...