Western Union Tel. Co. v. Henry

• Decision Date: 18 June 1894
• Citation: 27 S.W. 63
• Parties: WESTERN UNION TEL. CO. v. HENRY.
• Court: Texas Supreme Court

27 S.W. 63

WESTERN UNION TEL. CO. v. HENRY.

Supreme Court of Texas.

June 18, 1894.

Error from court of civil appeals of first supreme judicial district.

Action by J. B. Henry against the Western Union Telegraph Company for damages for delay in sending messages. From a judgment of the court of civil appeals (25 S. W. 1097) affirming a judgment of the county court, defendant brings error. Reversed.

M. R. Geer, for plaintiff in error. W. C. Buford and John R. Arnold, for defendant in error.

GAINES, J.

This suit was brought by defendant in error to recover of plaintiff in error damages for failure to deliver certain telegraphic messages. There was a judgment by default, from which the defendant company sued out a writ of error to the court of civil appeals, assigning as error the insufficiency both of the petition and of the citation to support the judgment. The court of civil appeals affirmed the judgment. The petition, after alleging that Evan Thompson, the grandfather of the plaintiff, was lying at the point of death at his residence in Rusk county, and that the plaintiff resided at Athens, in Henderson county, proceeded as follows: "That * * * W. H. Frizzell delivered to defendant the following message, at Henderson, Rusk Co., Texas: `Oct. 15th, 1890. To Ben Henry, Athens, Texas: Grandfather is very low. Come at once. W. H. Frizzell.' Said message was delivered by W. H. Frizzell to defendant's agent at Henderson, at 4:40 p. m., and received at Athens 8:30 p. m., but not delivered to petitioner until 10 o'clock p. m., making a delay of six hours. That petitioner answered said message as follows: `Can't come. Have wrote. Answer,' — which was sent from Athens at 10 p. m., on the 15th day of October, 1890, and received at Henderson at 1 p. m., on the 16th day of October,—a delay of about 15 hours, — and not delivered to W. H. Frizzell, the person to whom it was addressed, until 4 p. m., 16th day of October, 1890. That plaintiff could have no reply to his message last above set out, and on the 17th of October, at 10 o'clock a. m., he sent the following message to W. H. Frizzell, Henderson, Texas: `How is grandfather? Where is he? Answer immediately.' That the same was received at Henderson at 1:12 p. m., and not delivered to W. H. Frizzell until 3 o'clock p. m. of same day, — a delay of five hours. That said W. H. Frizzell, at 3:06 p. m. of the same day, replied to said message to petitioner: `Very low at his house. Lizzie, Bob with him,' — which was not delivered until 5 o'clock p. m. of same day. That said Evan Thompson died on the 17th, at 3 o'clock p. m., and was buried on the 18th October, 1891, at hour of 6 o'clock. That said W. H. Frizzell sent petitioner the following message: `Grandfather died at three p. m. Will bury here at 5 this evening.' Was sent from him at 10:30 a. m., October 18, 1891, and delivered to them at 4:30 p. m., October 18, 1891, — a delay of six hours. That plaintiff was by said messages endeavoring to ascertain the condition of said Evan Thompson for himself and others of his children and grandchildren, who resided at Athens, in Henderson, as above set out, and that defendant was fully informed of said fact; that petitioner and W. H. Frizzell were acting for them, as well as in their own interest. That said Evan Thompson's residence was about 20 miles from Henderson, Rusk Co., Texas, and about 10 miles from Timpson, Shelby county, Texas, a railroad station; and that Athens, Henderson county, Texas, is a railroad station about 80 miles from Henderson. That, although he did reply to the first message that he could not come, he did intend to come later on when he learned of the fatal sickness of his grandfather, and that all of the family of the said Evan Thompson intended to come, and would have come and been present to minister to said Evan Thompson and attend his burial, except for the inexcusable and culpable neglect and delay in the delivery of the said messages as above set out; and that petitioner and the other children and grandchildren who reside at Athens, in Henderson county, would have come if they had received said death message in time to come. That they were in railroad connection with...