Western Union Telegraph Co. v. Scarborough

Decision Date04 November 1931
Docket NumberNo. 3669.,3669.
Citation44 S.W.2d 751
CourtTexas Court of Appeals

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Action by Rosa Mae Scarborough and another against the Western Union Telegraph Company. From an adverse judgment, defendant appeals.


Wilson, Randal & Kilpatrick, of Lubbock, for appellant.

Vickers & Campbell, of Lubbock, for appellees.


Mrs. Scarborough, joined by her husband, Roy Scarborough, sued the Western Union Telegraph Company, alleging: That S. B. Burkhart was the father of Rosa Mae Scarborough. That he died near Sulphur Springs, Tex., March 20, 1930, and on that day the following telegram was sent:

                "Sulphur Springs, Texas
                              "8:10 A. M., March 20, 1930
                "Roy Scarborough, Box 394, Levelland, Texas
                  "Father is dead
                                       "Mollie Burkhart."

That the telegram reached Levelland, Tex., at 8:58 a. m., but was not delivered to Scarborough nor his wife until some thirty hours after it arrived at Levelland. That, if it had been delivered promptly, Mrs. Scarborough would have attended her father's funeral, but it was not delivered until such time that it was too late for her to attend the funeral. That the company was guilty of negligence in not delivering it, and by reason of such negligence she was not able to attend the funeral, and suffered mental anguish in the sum of $2,500.

The appellant denied the allegations in plaintiffs' petition generally, and alleged: That on March 20, 1930, one W. T. Glossip, agent of the plaintiffs, appeared at the telegraph office at Sulphur Springs and gave the message to Lloyd Dennis, messenger boy of the appellant company at that place. That the message was written by Lloyd Dennis and submitted to Glossip for approval, and that he approved it. That the company advised the sender of the message that the telegram would have to be mailed unless a better address was given. That no better address was given, and, after the message reached Levelland, the company was unable to locate the addressee, and place the message in the post office, properly stamped and addressed. That it was actually received by the Scarboroughs in time for them to have attended the funeral of S. B. Burkhart if they had desired so to do. That the message was written upon a blank form, which stipulated on its face that it was sent subject to the terms on the back thereof. That one of the terms on the back of the message blank is as follows: "In the case of intra-state messages in Texas the Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within ninety-five days after the cause of action, if any, shall have accrued." That the Scarboroughs had notice of this provision through the sender of the message, and are bound by it. That no written claim was ever filed with the telegraph company on this message, and the suit was not filed until more than ninety-six days after the alleged cause of action arose. The answer was duly verified.

By supplemental petition plaintiffs alleged that they did not have any notice of the ninety-five day clause on the back of the telegraph blank upon which the original message was written, and that the telegram as delivered to them did not have any ninety-five day clause printed on its back.

The case was submitted to a jury upon special issues, in response to which the jury returned the following findings: (1) The witness Glossip informed the agent at Sulphur Springs at the time the message was given for transmission that S. B. Burkhart, deceased, was the father of Mrs. Scarborough, the plaintiff herein. (2) The telegraph company did not use ordinary care to deliver the message in question to Roy Scarborough. (3) The plaintiffs nor either of them had any notice until after they filed this suit that they were to file a claim for damages within ninety-five days from the date the message was delivered. (4) Mrs. Scarborough would have filed or caused to be filed her claim for damages within ninety-five days from the date of the message if she had known of the printed stipulation to that effect on the back of the message. (5) Mrs. Scarborough would have attended the funeral of her father if the message had been delivered to her or her husband within a reasonable time after it was sent. (6) As the direct and proximate result of her failure to attend the funeral, Mrs. Scarborough sustained damages in the sum of $1,050.

Judgment was entered accordingly.

It is contended under the first proposition that, because of the ninety-five day limitation for filing the claim for damages and the failure of the plaintiffs to file such claim, the court erred in refusing to instruct the jury not to consider the testimony of Scarborough to the effect that written claim would have been filed within ninety-five days if plaintiff had had notice of such conditions.

By the second proposition, the appellant company insists that, because the blank upon which the message was written contained this notice: "Send the following message subject to the terms on the back hereof, which are hereby agreed to"; and upon the back of the message there was printed the ninety-five day notice of claim stipulation, and further because no written claim for damages was ever filed with the company and the suit was not filed until more than ninety-six days after the message was actually received, the court erred in not instructing a verdict in favor of the company. These two propositions are submitted together.

R. S. art. 5546, provides that no stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable; that any such stipulation fixing the time at less than ninety days shall be void.

In the case of Taber v. Western Union Telegraph Co., 104 Tex. 272, 137 S. W. 106, 34 L. R. A. (N. S.) 185, Judge Dibrell said that that statute was general in its application and was not designed to embrace telegraph companies alone. The statute has been construed against railroads, insurance companies, and other corporations, and it is held that the duty rests upon such companies to plead and prove the reasonableness of the stipulation. Francis v. International Travelers' Association (Tex. Civ. App.) 260 S. W. 938; St. Louis, B. & M. Ry. Co. v. Marcofich (Tex. Civ. App.) 185 S. W. 51; Southern Kansas Ry. Co. v. Hughey (Tex. Civ. App.) 182 S. W. 361; International Travelers' Association v. Griffing (Tex. Civ. App.) 264 S. W. 263; Western Union Telegraph Co. v. Cates (Tex. Civ. App.) 282 S. W. 661; 8 Texas Jur. § 249; Texas & P. Ry. Co. v. McGilvary (Tex. Civ. App.) 29 S. W. 67.

The appellant alleged that the ninety-five day stipulation was reasonable, but introduced no testimony in support of the allegation. The only proof bearing upon that issue is the testimony of Roy Scarborough, who says that the telegram mailed to him and received about 8 o'clock on the night of the 21st of March was written upon a blank which had no notice or stipulation of any kind printed either on its face or back, and that plaintiffs had no notice of the ninety-five day provision until this suit was filed. The plaintiffs' petition is so framed as to entitle them to recover, either upon an implied contract or ex delicto. Western Union Telegraph Co. v. Alred (Tex. Civ. App.) 4 S.W.(2d) 666. Plaintiffs did not sue upon the contract. It has been injected into the case by the appellant's answer. The notice upon the face of the telegram made the ninety-five day stipulation a part of the contract, and every consideration of fairness and equity required that the message, when taken from the wire, should have been written on the same kind of a blank. The uncontradicted testimony is that the telegram as received by the plaintiffs contained neither a notice nor any stipulation of any kind, and the failure of the appellant's operator at Levelland in taking the telegram from the wire to write it out upon the same kind of a blank upon which it received the message is, under all the circumstances, a fraud in law. The record shows that it was about five hundred miles from Levelland, the place of destination, to Sulphur Springs, the initial point, and in the nature of things several days would be required for the sender of the telegram to notify the plaintiffs of the ninety-five day stipulation, even if this could be held to be a requirement.

The record shows that Glossip, who had the Sulphur Springs operator to write out the telegram for him, was a neighbor of the Burkhart family, doing a kindly act for the bereaved wife in her hour of gloom, and that no legal duty rested upon him to notify either the widow or the daughter of the deceased that the blank upon which the message was written contained a ninety-five day notice stipulation. Indeed, he was justified in believing that the death message would be promptly delivered, in which case no necessity for such a notice would arise. When, under all the circumstances, it cannot be reasonably expected that an agent will notify his principal of facts coming to his knowledge, the rule that notice to an agent is notice to the principal does not apply—especially is this true when the notice to the agent is constructive and not actual, as in this...

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2 cases
  • Russ v. Western Union Telegraph Co.
    • United States
    • North Carolina Supreme Court
    • 8 Enero 1943
    ... ... Tel. Co., 136 N.C. 489, 49 S.E. 165, 67 L.R.A. 985, 1 ... Ann.Cas. 349, 103 Am.St.Rep. 955 ...          In the ... instant case, the direction was to deliver the message to ... A.P. Russ, not to a post office box, an inanimate receiver ... Western Union Tel. Co. v. Scarborough, Tex.Civ.App., ... 44 S.W.2d 751; Western Union Tel. Co. v. Freeland, ... Tex.Civ.App., 12 S.W.2d 256. Nor is the case controlled ... by the decision in Lefler v. Western Union Tel. Co., supra ... There, the message was sent in care of an agent who ... presumably would be in position to care ... ...
  • Hobbs v. Western Union Telegraph Co.
    • United States
    • North Carolina Supreme Court
    • 21 Marzo 1934
    ... ... "R. F. D. 1," is a direction to the telegraph ... company to use the mail for delivery, and that the company ... was not liable for the delay thereby occasioned, there is ... equally impressive authority to the contrary. In the recent ... case of Western Union Telegraph Company v. Scarborough ... (Tex. Civ. App.) 44 S.W.2d 751, 755, it was held that: ... "the mailing of a telegram which designates the ... postoffice box of the addressee is not a fulfillment of the ... telegraph company's contractual or legal duty." In ... Western Union Telegraph Co. v. Freeland (Tex. Civ ... ...

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