Western Union Telegraph Co. v. Waller

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Western Union Telegraph Co. v. Waller, 233 S.W. 1026 (Tex. App. 1917)
• Decision Date: 07 February 1917
• Docket Number: (No. 7303.)
• Parties: WESTERN UNION TELEGRAPH CO. v. WALLER.

Page 1026

233 S.W. 1026

WESTERN UNION TELEGRAPH CO. v. WALLER.

(No. 7303.)

Court of Civil Appeals of Texas. Galveston.

February 7, 1917.

On Motion for Rehearing, April 6, 1917.

Appellee's Rehearing Denied October 6, 1921.

Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.

Action by M. S. Waller against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

See, also, 232 S. W. 487.

Hume & Hume, of Houston, for appellant.

C. B. Barkley and Woods, King & John, all of Houston, for appellee.

GRAVES, J.

Defendant in error, M. S. Waller, as plaintiff, sued plaintiff in error, Western Union Telegraph Company, as defendant, for damages for mental anguish upon allegations hereinafter fully set out. The case was tried before Hon. A. R. Hamblen, special judge of the Eleventh district court of Harris county, sitting with a jury, being submitted by the court upon a general charge, all the material parts of which are also hereinafter copied in full; and upon the jury's returning a verdict — also general — in the sum of $1,100 for plaintiff, judgment was accordingly entered January 17, 1916, in his favor and against defendant for that sum.

Defendant's answer to said cause of action as so pleaded consisted of a general demurrer and 12 special exceptions, all of which were overruled, and a general denial. Defendant filed its motion for new trial within the time allowed, which it later abandoned by not securing action of the court thereon; then still later — that is March 8, 1916, and independently of said motion for new trial and of the grounds therein set up — it filed its assignments of error hereinafter discussed; such of these assignments as have been also presented in its brief in this court were all addressed either to the trial court's action upon the demurrers, general and special, or upon the admission or rejection of evidence; in all instances this action of the court, which is a matter of record wholly apart from the abandoned motion for new trial, was duly excepted to by the defendant. It further duly applied for and perfected its writ of error to this court, and upon such writ of error the trial here is had.

The defendant in error has filed in this court and insisted upon his motion to dismiss the writ of error, mainly upon the ground that the assignments of error contained in the transcript cannot be considered under the statutes and rules, because a motion for new trial was filed and not called to the attention of the trial court, and, under article 1612, Vernon's New Sayles' Statutes, a motion for new trial constitutes the assignments of error, and a totally different set of assignments attempted to be filed is not entitled to consideration. In this motion he concedes that this court has jurisdiction of the case, due to the perfection of the writ of error, but insists that it should dismiss the writ for noncompliance with the rules and the statutes. His contention is that under rule 71a by the Supreme Court (145 S. W. vii) and said article 1612, this court cannot consider said assignments of error, because they were not embodied in the motion for a new trial shown by the record to have been duly overruled. We cannot sustain this contention, nor so construe said article 1612, but we think the plain purpose of said article was to permit such assignments to be filed either in or independently of the motion for new trial. W. U. Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; American Life Ins. Co. v. Rowell, 175 S. W. 170; May v. Waniger, 164 S. W. 1106; Lee v. Moore, 162 S. W. 438; Sargent v. Barnes, 159 S. W. 368; Conn v. Rosamond, 161 S. W. 73; Railway v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471; Davis v. Parks, 157 S. W. 449; Stein Tire Co. v. Fulton, 159 S. W. 1013; Craver v. Greer, 107 Tex. 356, 179 S. W. 862; Thompson v. Price, 157 S. W. 288; Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184. Accordingly we overrule the motion to dismiss the writ.

Coming now to the merits of the appeal: Since the evidence in all substantial and material respects established the facts as pleaded by plaintiff, including the telegraph company's negligence, since, further, on page 2 of its brief filed in this court it has admitted that it was guilty of the negligence charged, we omit from both the plaintiff's pleadings and the court's charge the averments of, and the instructions concerning, this negligence as nearly as may be. In all other material respects the allegations of plaintiff were as follows:

"That on said 29th day of August. A. D. 1906, plaintiff's wife and stepdaughter, Miss Genevieve Chilson, were sojourning temporarily in the city of Denver in the state of Colorado, and were then stopping at the Shirley Hotel in said city; that on said date, to wit, August 19, 1906, plaintiff and his wife and stepdaughter had their domicile and home in the city of Houston, Harris county, Tex., and they were on said date in the city of Denver, and his said wife and stepdaughter were on said date in the city of Denver spending a part of the summer; that when plaintiff and wife and stepdaughter last parted plaintiff's wife was apparently in good health; that it was understood and arranged between plaintiff's wife and himself and stepdaughter that they were to be supplied by plaintiff with money and funds as needed on their summer vacation while visiting Denver, and that they might inform him of said needs either by telegraph or letter.

"That plaintiff was at said time, to wit, August 29, 1906, and at all times thereafter and at the time of separating from his wife, financially able and willing to gratify all their wants and meet any demands for money made by them to him.

"That on said August 29, 1906, plaintiff's wife, who was then located in the city of Denver, as aforesaid, was taken suddenly and dangerously ill to such an extent as to utterly prostrate her, and confine her to her bed and room, and require the attention of a physician and surgeon; that plaintiff's wife and stepdaughter were utter strangers in the city of Denver, having no friends and associates to appeal to for assistance or financial aid, but were at said time and on said date entirely dependent for financial aid, for counsel and assistance, on this plaintiff; that his stepdaughter, Genevieve Chilson, was a young lady, inexperienced, and who had never had to rely upon herself in case of emergency or otherwise; that plaintiff had formerly resided in the city of Denver and other portions of Colorado, and had many friends and acquaintances residing in the city of Denver on said 29th day of August, 1906, but none of them knew or were acquainted with either his wife or stepdaughter, Miss Chilson.

"That plaintiff's stepdaughter, being at the bedside of her sick mother, and the only companion and adviser, on August 29, 1906, at the instance of her mother and in her own behalf and in the behalf of this plaintiff, delivered to defendant company at its office in the city of Denver the following messages, and paid for the same the compensation demanded by said company, which was the usual and customary charges therefor, said messages so delivered were in substance as follows: `Denver, Colorado, Aug. 29th, 1906. Judge M. S. Waller, 22 and 23 Masonic Temple, El Paso, Texas. Moved Mama to hospital tonight. Will operate tomorrow, very dangerous condition, blood poisoning, wire money immediately, am very worried. Genevieve.'

"And also the following: `Denver, Colorado, Aug. 30th, 1906. Judge M. S. Waller, Room 22 Masonic Temple, El Paso Texas. Doctor obliged to perform big operation to save mama's life, very critical condition, come at once. Genevieve.'

"That said messages and telegrams as indicated by their terms were intended to inform plaintiff of two things: First, the dangerous sickness of plaintiff's wife; and, second, that she, Genevieve Chilson, plaintiff's stepdaughter, and plaintiff's wife, were destitute of money, and were in distress and in need of money at once to relieve plaintiff's wife and stepdaughter of their distress and needs and to have plaintiff come to their assistance at once.

"That said corporation did not transmit and forward said two telegrams, or either of them, as herein set out, from El Paso to Marfa on the 30th day of August, 1906, or at any other date, but delivered same to plaintiff at his special solicitation, instance, and request in the city of El Paso on September 1, 1906.

"That on August 31, 1906, plaintiff, while still sojourning at his hotel at Marfa, Tex., as hereinabove alleged, did receive a telegram sent to him by way of Galveston, from his step-daughter, Genevieve Chilson, which said telegram was in substance as follows: `Denver, Colorado, August 31st, 1906. M. S. Waller, Mother had serious operation yesterday, died this morning. Genevieve Chilson.'

"That that was the first information plaintiff received of the illness of his wife and the condition and situation of her and his stepdaughter, and that immediately upon receipt of same, which was about the noon hour on August 31, 1906, plaintiff telegraphed to friends in Denver, and other points near there, and advised them of the death of his wife, and of the situation of his stepdaughter alone with the corpse of her said mother, and among strangers and without funds, and requested them to go to her assistance at once and render to her all assistance, financially and otherwise, necessary, and to see to the burial preparations and preparing of the body for burial and embalming same, and to furnish a burial casket, and to do any and all other things necessary and proper in the premises, and to relieve the distressed condition of his said stepdaughter's mind in so far as possible.

"That he also immediately telegraphed to his said stepdaughter at Denver that he had telegraphed to friends in and near Denver to furnish her with money and all other assistance necessary and...