Western Union Tel. Co. v. Hinkle
| Decision Date | 21 June 1893 |
| Parties | WESTERN UNION TEL. CO. v. HINKLE. |
| Court | Texas Court of Appeals |
Appeal from district court, Wichita county; L. C. Barrett, Judge.
Action by C. P. Hinkle against the Western Union Telegraph Company to recover for delay in delivering a message. Judgment for plaintiff. Defendant appeals. Affirmed.
Stanley, Spoonts & Meek and Carrigan & Hughes, for appellant. Boyd & Ofiel, W. P. Skeen, and W. H. Bingham, for appellee.
This suit was brought by appellee to recover damages for mental suffering caused by the negligent failure of appellant to promptly transmit and deliver a telegram sent by W. A. Brundage from Midlothian, to appellee, in care of Dan Butcher, at Wichita Falls. The material allegations of the petition are sustained by the proof. We therefore concur with the trial court in approving the verdict for $500. The assignments of error will be disposed of seriatim.
1. There was no error in refusing to suppress the deposition of W. A. Brundage on the alleged ground that the officer taking the deposition failed to write his name across the seal. The trial court found that the name was written across the seal, and an inspection of the envelope sent up with the transcript fails to show to the contrary. Besides, the bill of exceptions fails to show that any part of this particular deposition was read in evidence.
2. There was no error in refusing to charge that the stipulation contained in the printed form upon which the message was written by appellant's agent, at Wichita Falls, preparatory to its delivery to appellee, required notice in writing to be given of the claim for damages within 60 days before suit could be instituted. When the message was received for transmission at Midlothian, it was not written upon a printed form containing any such stipulation. Then it was that the contract was made and the compensation for the service rendered received. Appellant certainly could not, with any show of reason, after it had both made and broken its contract, impose a condition not insisted upon when the contract was entered into.
3. There was no error in admitting the evidence of W. A. Brundage, over appellant's objections, on the ground of an alleged variance. The message delivered to appellee by appellant as the one sent by Brundage was set out in the petition, and the proof showed that only one message had been sent. It was for the jury to determine the weight to be given this testimony in reference to...
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...are accordingly overruled. McClelland v. Smith, 3 Tex. 210; Brown Candy Co. v. Johnson, 159 S. W. 684, 685; W. U. Tel. Co. v. Hinkle, 3 Tex. Civ. App. 518, 22 S. W. 1004; Krueger v. Klinger, 10 Tex. Civ. App. 576, 30 S. W. 1087; Jones v. Meyer Bros. Drug Co., 25 Tex. Civ. App. 234, 61 S. W.......
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