Western Union Tel. Co. v. Smith

• Decision Date: 25 March 1895
• Citation: 30 S.W. 549
• Parties: WESTERN UNION TEL. CO. v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

30 S.W. 549

WESTERN UNION TEL. CO. v. SMITH.¹

Supreme Court of Texas.

March 25, 1895.

Error to court of civil appeals of supreme judicial district.

Action by W. H. Smith against the Western Union Telegraph Company. There was a judgment for plaintiff, which was affirmed by the court of civil appeals, and defendant brings error. Reversed.

Field, Brown & Camp, for plaintiff in error. H. G. Robertson and W. A. Kemp, for defendant in error.

BROWN, J.

W. H. Smith sued the Western Union Telegraph Company for damages for negligent failure to transmit and deliver the following message: "Waxahachie, Tex., March 2, 1888. To W. H. Smith, 430 South Harwood St., Dallas, Texas: Father dangerously ill. Come at once. Wesley Smith." The petition alleged, in substance, that, at the date of the telegram, the defendant owned and operated a telegraph line from the city of Waxahachie, in Ellis county, to the city of Dallas, in Dallas county, Tex., and for hire received, transmitted, and delivered messages for the public between the said points; that, on the day stated, plaintiff's brother delivered to defendant's agent, at the city of Waxahachie, the message above set out, to be promptly transmitted and delivered to plaintiff at Dallas, Tex. Then follow some allegations not material to the question to be determined. The petition contains the allegations substantially that although defendant was paid the customary charges for its services, and had undertaken to promptly transmit and deliver the message, it failed to deliver the same until March 5th; three days after it was sent. It also alleges that, if the telegram had been promptly delivered, plaintiff could have seen his father alive; but, on account of the negligence of the defendant in not transmitting and delivering the message with reasonable care and promptness, plaintiff did not learn of the illness of his father until it was too late to reach him before his death; alleging the damages caused by the negligence charged. The facts as found by the court of civil appeals show that on the 2d day of March, 1888, Wesley Smith, brother of plaintiff, delivered the message to the Central Texas & Northwestern Telegraph Company at Waxahachie, which company transmitted the message to Ennis to the manager of the defendant, who received it, and sent it the same day to Dallas, where it was received on the day that it was transmitted from Ennis. It was not delivered to plaintiff until 8 o'clock a. m. March 5, 1888, although he lived in Dallas, on the street and at the place indicated by the number on the message. There was an arrangement between defendant company and the Central Texas & Northwestern Telegraph Company by which they handled each other's messages on division of the tolls, dividing and accounting at the end of each month. Plaintiff's father lived in Ellis county, nine miles from Waxahachie, and died on the 4th of March, 1888, at 11:15 p. m. The message could have been delivered by the exercise of reasonable diligence on the evening of the 2d, more than two days before the father died. The plaintiff left on the first freight train after he received the message, but arrived after his father's death. In fact, the message was delivered after the death had occurred. There was no proof of the distance between Dallas and Waxahachie, nor the means of communication, nor yet of the time it would require to travel from one place to the other. The case was tried by a jury, and judgment given for the plaintiff, which was affirmed by a majority of the court of civil appeals, Lightfoot, C. J., dissenting. 30 S. W. 937.

The petition for writ of error sets up the following grounds of error for our examination: (1) That the evidence does not support the allegations of the petition, and that, for that reason, the judgment cannot be sustained. (2) That there was no evidence as to the distance between the place where plaintiff lived and the place where his father died, nor of facts showing that plaintiff could have arrived before the death of his father if the message had been delivered in proper time. (3) That the court erred in instructing the jury in substance that, if the evidence showed that the message was received at the defendant's office in Dallas at a time when, if delivered promptly, plaintiff could have reached his father in his lifetime, it devolved upon defendant to show any facts that would excuse the failure to deliver it in proper time. (4) The court erred in not instructing the jury at defendant's request, in substance, that the plaintiff could not recover for mental anguish occasioned by the death of his father that would have been caused by such death whether the message was delivered or not, but for such only as was occasioned by his failure to be present before his father died.

The majority of the court of civil appeals held that the main question now presented in this case was determined by this court on former appeal, reported in 84 Tex. 359, and 19 S. W. 441; and counsel for defendant in error insists that the same...