Western Union Tel. Co. v. Gibson

• Decision Date: 18 November 1896
• Citation: 39 S.W. 198
• Parties: WESTERN UNION TEL. CO. v. GIBSON.
• Court: Texas Court of Appeals

39 S.W. 198

WESTERN UNION TEL. CO. v. GIBSON.

Court of Civil Appeals of Texas.

November 18, 1896.

Appeal from district court, Van Zandt county; F. J. McCord, Judge.

Action by Mrs. Mary Gibson against the Western Union Telegraph Company for damages for delaying the delivery of a telegram. Plaintiff had judgment, and defendant appeals. Reversed.

M. R. Geer, for appellant. Kearby & Greer, for appellee.

KEY, J.

The following statement of the nature and result of this case is taken from appellant's brief: September 5, 1892, Mrs. Gibson filed this suit for $1,900 damages for nondelivery of this message: "Corsicana, July 13, 1892. Mrs. Mary Gibson, Edgewood: Papa died yesterday evening. Arthur Dean." The allegations of the original petition were that plaintiff was the mother-in-law of John Dean, who was the "papa" mentioned in the message; that the message was received at Edgewood at 9:40 a. m., and delivered at 3:48 p. m., July 13th; that she lived in sight of defendant's office; that before the message was filed at Corsicana the agent of defendant at Edgewood was notified that a telegram was expected; her residence was pointed out; a prompt delivery requested, which was promised; a passenger train passed Edgewood at 4:07 p. m., daily, which would have put her at Corsicana by 8 o'clock p. m., which would have enabled her to have been with her son-in-law several hours before his burial; that the delivery at 3:48 p. m. was too late to enable plaintiff to reach and take the 4:07 train; that there was no other train until 4 a. m., July 14th, which plaintiff took, and reached Corsicana two hours after burial. The defendant's original answer was filed October 25, 1892, which was amended April 5, 1894. On March 28, 1895, the defendant's demurrers to plaintiff's cause of action were sustained, and on March 28, 1895, the plaintiff filed her first amended original petition. No exceptions were presented to the petition filed on March 28th, but on April 1, 1895, plaintiff again amended. The original petition, the first amended petition, and the second amended petition, together with the answers of the defendant, are contained in the transcript, that the court may know the changes of the plaintiff's cause of action, and to make pertinent the assignment of errors. On April 12th the defendant moved to strike out the amendment of Mrs. Gibson, filed on April 1, 1895, which was overruled by the court. The general demurrer was sustained, because the relationship would not support a recovery, and the second amended original petition was filed; and in this second amendment plaintiff alleged that Arthur Dean, the sender of the message, at the time that he filed it at Corsicana, informed defendant's agent "of the friendly relationship existing between plaintiff and the deceased, and of plaintiff's anxiety and desire to be present at the burial of the said John Dean, and urged upon the said agent of defendant the importance of the prompt transmission and delivery of said message; that the said Mary Gibson would be expecting this message and would come promptly in response thereto; that said John Dean was the father of the said Arthur Dean, and that the plaintiff was his grandmother, and that plaintiff thought as much of the said John Dean as she would had be been her son." To this second amendment the defendant answered a general demurrer, several exceptions, a general denial, that plaintiff lived without the free-delivery limits, the one-year statute of limitation, and that by the use of ordinary diligence the plaintiff could have been at the burial. Upon these issues a trial was had by jury, resulting in a verdict of $790 against the defendant. Motion for a new trial was overruled, and the cause is here upon eight errors assigned in the transcript and one fundamental error assigned in this brief.

The testimony shows that appellant received and obligated itself to promptly transmit and deliver the telegram; that there was no delay in its transmission, but that, if Mrs. Gibson lived within one-half mile of the telegraph office in Edgewood, there was unnecessary delay in the delivery thereof; and, while there is conflict in the evidence, we cannot say that the finding of the jury that Mrs. Gibson resided within the delivery limits is not supported by testimony. Without discussing all the questions presented in appellant's brief, there is one point which we regard as well taken, and as fatal to the plaintiff's case. In Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896, the plaintiff sought to recover damages for mental anguish caused by the failure to deliver a telegram in time to enable him to attend the burial of his brother-in-law; and it was there held that when there is no blood kinship between the plaintiff...