Western Union Tel. Co. v. Mitchell

• Decision Date: 14 February 1898
• Citation: 44 S.W. 274
• Parties: WESTERN UNION TEL. CO. v. MITCHELL.
• Court: Texas Supreme Court

Page 274

44 S.W. 274

WESTERN UNION TEL. CO. v. MITCHELL.

Supreme Court of Texas.

February 14, 1898.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by W. F. Mitchell against the Western Union Telegraph Company. Plaintiff had judgment, and defendant appealed to the court of civil appeals, which certifies questions.

John A. Green, Sr., Hutchison & Franklin, and John A. Green, Jr., for appellant. L. H. Browne and Brown & Pritchett, for appellee.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified for our consideration the questions hereinafter stated, which are accompanied by a statement, from which we make the following substantial statement of the facts necessary to the consideration of the questions submitted: W. F. Mitchell filed a suit in the district court of Hays county against the Western Union Telegraph Company, alleging in substance that on the 24th day of March, 1890, the plaintiff resided in San Marcos, Tex., and owned a cattle ranch in Presidio county, Tex., on which he had 10,000 head of cattle; that plaintiff at that time was in San Marcos, but the ranch and the cattle were under the control and management of his son, F. A. Mitchell, who was then on the ranch, and in the active management of the same. It is alleged that the supply of water on the said ranch was amply sufficient for the support of the cattle held on it up to the 23d day of March, 1890, when the supply of water was suddenly greatly diminished, so that on the 24th of that month the cattle were in great danger of famishing for water, unless speedily relieved, which F. A. Mitchell was not able to do, in the absence of the plaintiff, nor could any one else procure water for the said cattle, because it required that special negotiations should be made on behalf of the plaintiff with third parties, which negotiations neither F. A. Mitchell nor any other person could effect; that, if plaintiff had been present, he could have made such arrangements in time to have saved his cattle from the damages which they afterwards sustained. The petition alleged that on the 24th day of March, 1890, F. A. Mitchell, as agent for the plaintiff, caused to be delivered to the agent of the defendant at the town of Marfa, Tex., the following message: "Marfa, Tex., 3-24-90. To W. F. Mitchell, San Marcos: Water is getting low. Come out. [Signed] F. A. Mitchell." It is averred: That at the time this message was delivered to the defendant's agent the latter was informed of the dangerous situation of the cattle; that they were upon the ranch, and the supply of water bad become insufficient, and the cattle were in present danger of starving for water; and of the necessity for the presence of the plaintiff to provide water; also, that the message was being sent to the plaintiff that he might come with all possible speed to make necessary arrangements for water. That plaintiff was ignorant of the failure of the water, and of the dangerous situation of his cattle, and remained absent from the ranch three days longer than he would if he had received the message in due time. It is alleged that, if the message had been delivered in a reasonable time, the plaintiff would have gone to his ranch at once, and could and would have made arrangements for water for his cattle, which would have prevented the losses that occurred thereafter. It was not averred that he could have made any particular arrangements with any particular person in order to have procured the water, nor what kind of arrangements could have been made. The petition charged that the defendant negligently failed to deliver the message to the plaintiff, whereby he was prevented from repairing to his ranch and making arrangements for water for his cattle, and in consequence of which he suffered the damages which were particularly set out. The defendant filed special exceptions to the petition, "because it is not alleged therein when, where, and in what manner he could have arranged to get water for his cattle, and thereby avoid the injuries complained of." The trial court overruled the exception, to which the defendant excepted, and the ruling is assigned for error. Plaintiff was in San Marcos, at his residence, on March 24, 1890, until about 10:50 a. m., when he went to the depot, and took passage on a south-bound passenger train on the International & Great Northern Railroad for Pearsall, which is situated on that road, about 50 miles south of San Antonio, and reached Pearsall at about 2 p. m. the next day, where he remained at a public hotel until 11 a. m. the next day. Mrs. Mary Mitchell, wife of the plaintiff, remained at home, in San Marcos,—a large, two-story house, in the thickly-settled portion of that town. Defendant's agent at San Marcos was not acquainted with Mitchell at that time, but became acquainted with him a few days afterwards. The evidence for the plaintiff tended to show that on the afternoon of March 24th the agent of defendant at San Marcos telegraphed to the agent of defendant at Marfa that the addressee of the message could not be found in San Marcos, and that the agent at Marfa made inquiry of Gillette, who delivered the message to him, and was by Gillette instructed to have the message delivered to Johnson & Johnson, a firm of merchants in San Marcos. Upon the trial of the case the attorneys for the plaintiff asked G. G. Johnson, a member of the firm of Johnson & Johnson, and Mrs. Mary Mitchell (each separately), in substance, the following question: What he or she could and would have done if the message had been delivered to him or to her on the evening of the 24th of March. To which question each witness answered, in substance, that he or she, as the case might be, would have sent it to the plaintiff at Pearsall. To which questions and answers the defendant objected "because it invades the province of the jury, is problematical, and is merely an opinion." The objections were overruled, and exceptions saved. The court charged the jury as follows: "If you find from the evidence in this case that on the 24th day of March, 1890, the defendant, at Marfa, Texas,...