Western Union Telegraph Co. v. Honeycutt

• Decision Date: 28 March 1923
• Docket Number: (No. 894.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WESTERN UNION TELEGRAPH CO. v. HONEYCUTT et ux.
• Court: Texas Court of Appeals

250 S.W. 431

WESTERN UNION TELEGRAPH CO. v. HONEYCUTT et ux.

(No. 894.)^*

Court of Civil Appeals of Texas. Beaumont.

March 28, 1923.

Rehearing Denied April 11, 1923.

Appeal from District Court, Sabine County; V. H. Stark, Judge.

Action by J. A. Honeycutt and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hamilton & Hamilton, of Hemphill, and F. J. & C. T. Duff, of Beaumont, for appellant.

Minton & Lewis, of Hemphill, for appellees.

O'QUINN, J.

This is an appeal from a judgment in favor of appellee J. A. Honeycutt for the sum of $1,250, as damages for mental anguish suffered by his wife, Mrs. Inez Honeycutt, due to the negligent failure of appellant to correctly transmit and promptly deliver to her a certain telegram informing her that her mother was seriously ill and not expected to live.

There is practically no dispute as to the facts. On February 11, 1920, Buck Simpson sent the following message from Batesville, Tex., to Mrs. Inez Honeycutt, wife of appellee J. A. Honeycutt, at Hemphill, Tex.:

                    "Batesville, Texas, February 11, 1920
                

"Mrs. Inez Honeycutt, Hemphill, Texas. Mother very low. Not expected to live.

                                         "Buck Simpson."
                

Buck Simpson was a brother of Mrs. Inez Honeycutt, and the "Mother" referred to in the message was the mother of Buck Simpson and Mrs. Inez Honeycutt. The message was over phone from Batesville, Tex., to Uvalde, Tex., and from there to Bronson, Tex., over the wires of appellant, and from there to Hemphill over phone line of the Sabine Citizens' Telephone Company. The message was received at Hemphill, but in such changed form as to its address that it was not delivered until several days after Mrs. Honeycutt's mother had died, and was buried. It appears from the record that when received at Bronson the message was addressed to Jane Z. Honeycutt, and when received at Hemphill it was addressed to Mrs. James Honeycutt. Appellant impleaded the Sabine Citizens' Telephone Company, alleging that, if the message in question was not promptly delivered, the failure to so deliver same was due to the negligence of said telephone company, and that, in the event any judgment was had against appellant, it have judgment over against said telephone company.

Appellant asserts:

"The burden being upon plaintiff to prove the delivery of the message in question to the telegraph company, and that same was properly addressed when received by the telegraph company, and plaintiff having failed to meet this requirement, the court should have instructed a verdict for the defendant."

Under this appellant says:

"The burden was on plaintiff to show that when the message was delivered to the telegraph company it was properly addressed."

It is undisputed that Buck Simpson, brother of Mrs. Inez Honeycutt, wife of appellee J. A. Honeycutt, delivered to the Batesville Telephone Company, at Batesville, Tex., on February 11, 1920, the message above quoted. Appellant says:

"The operator, Miss Eugenia Herman, testified that she undertook to phone the message to defendant's agent at Uvalde, and that the message was addressed to Mrs. Inez Honeycutt."

And further says:

"From the time the message was delivered to the telegraph company at Batesville, there is no proof of its wording or how it was addressed until its arrival at Bronson."

Miss Herman testified positively that she correctly transmitted the message to appellant's agent at Uvalde. The only evidence of how the message was addressed when received by appellant's agent at Uvalde was that produced by appellee by the witness Miss Herman. She testified:

"I was operator for the Batesville Telephone Company on February 11, 1920. * * * I telephoned said telegram to the agent or operator of said Western Union Telegraph Company at Uvalde, Tex. The name of the agent of the Western Union Telegraph Company at Uvalde to whom I telephoned said telegram was Mr. Despain; I do not know his initials. I transmitted said telegram to said Western Union Agent at Uvalde, Tex., correctly, and in the exact form and words in which said telegram was delivered to me by the said Buck Simpson."

The agent of appellant at Uvalde, Despain, did not testify, and there is no explanation of why he did not testify. Thus the testimony of Miss Herman, that she transmitted said telegram to appellant's agent in the exact form and words in which it was delivered to her, is uncontradicted. If she did not transmit the address correctly, or if for any reason appellant's agent at Uvalde did not understand correctly the address as given him over the phone by Miss Herman, appellant was in position to have explained the situation, and to have shown what the address was that was given him by Miss Herman by producing its said agent, Despain, and having him to testify, or by taking his depositions and offering them in evidence. It was in the power of appellant to show whether the message was transmitted to and received by its agent at Uvalde, addressed to Mrs. Inez Honeycutt, by either producing the said agent at Uvalde, Despain, who received the message, and having him to testify in person, or by taking his deposition. This was not done. No explanation appears in the record as to why it was not done. The entire omission of appellant to offer such testimony, being unexplained, justifies the presumption that said agent's testimony would not have aided appellant. Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801; Railway v. Blair (Tex. Civ. App.) 184 S. W. 566; Railway v. Jones (Tex. Civ. App.) 187 S. W. 719; Liddell v. Gordon (Tex. Civ. App.) 241 S. W. 754; Davis v. Etter & Curtis (Tex. Civ. App.) 243 S. W. 604.

Appellant complains that the answer of the jury to special question No. 2, wherein they found that the Sabine Citizens' Telephone Company was not negligent in failing to deliver the message, was not supported by the evidence. This special question was submitted to the jury at the request of appellant, and they found against appellant's contention. We think there is sufficient evidence in the record to sustain the verdict. The proposition is overruled.

At request of appellant, the court submitted to the jury special question No. 3, in answer to which the jury found that the Sabine Citizens' Telephone Company was not negligent in failing to notify appellant of said telephone company's inability to deliver the message. Appellant complains that said finding is unsupported by the testimony. We think the jury's finding has sufficient support in the record. Patton v. Rucker, 29 Tex. 402; Ward v. Bledsoe, 32 Tex. 252; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696; Railway v. Marti (Tex. Civ. App.) 183 S. W. 846; Underwood v. Security Life & Annuity Co., 108 Tex. 381, 194 S. W. 585.

Appellant complains that the verdict of the jury awarding damages in the sum of $1,250 is excessive. We think that the record discloses that but for the negligence of appellant the message could have been delivered to Mrs. Honeycutt in time for her to have reached the bedside of her mother several hours before her death. Her mother remained rational up to her death. Mrs. Honeycutt was greatly grieved and worried because she was deprived of the opportunity of seeing and being with her mother at the time of her death, and because she was deprived of the privilege of attending her burial. The evidence warranted the finding. W. U. T. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; W. U. T. Co. v. Hill (Tex. Civ. App.) 162 S. W. 382; W. U. T. Co. v. Piner, 9 Tex. Civ. App. 152, 29 S. W. 66; W. U. T. Co. v. Parham (Tex. Civ. App.) 210 S. W. 740; W. U. T. Co. v. Carver, 222 S. W. 333; W. U. T. Co. v. Gest (Tex. Civ. App.) 172 S. W. 183.

Among other defenses relied upon by appellant and specially pleaded in its answer was that it accepted the message for transmission subject to the usual custom and contract contained on the back of the company's blank form, upon which it had a rule that all messages must be written, specially pleading the following of said stipulations:

"Clause 3. The company is hereby made the agent of the sender without liability to forward this message over the lines of any other company when necessary to reach its destination."

"Clause 6. The company will not be liable for damages or statutory penalty in any case where the claim is not presented in writing within ninety-five days after the message is filed with the company for transmission,"

and alleging that the claim had never been presented to...