Western Union Telegraph Co. v. Cates

• Decision Date: 23 February 1927
• Docket Number: (No. 698-4620.)
• Citation: 291 S.W. 193
• Parties: WESTERN UNION TELEGRAPH CO. v. CATES.
• Court: Texas Supreme Court

Page 193

291 S.W. 193

WESTERN UNION TELEGRAPH CO. v. CATES.

(No. 698-4620.)

Commission of Appeals of Texas, Section B.

February 23, 1927.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by W. V. Cates against the Western Union Telegraph Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (282 S. W. 661), and defendant brings error. Reversed and rendered.

Roscoe Wilson, of Lubbock, and Wm. H. Flippen, of Dallas, for plaintiff in error.

Robt. H. Bean and Bean & Klett, all of Lubbock, for defendant in error.

SPEER, J.

The writ of error herein has been granted to review the decision of the Court of Civil Appeals for the Seventh district, affirming a judgment of the district court, in a death message case against the Western Union Telegraph Company. 282 S. W. 661. The defendant in error sued plaintiff in error to recover damages for negligence in failing to transmit and deliver a certain message and for negligence in failing to service such message upon inability to deliver it. Plaintiff's mother died at Goose Creek, Tex., and A. L. Cates, his brother, sent to him at Lubbock, Tex., over the defendant's lines, a message as follows:

"Mother is dead. Arrive home 3 p. m. tomorrow."

Upon receipt of this message plaintiff attempted to send a message to A. J. Adrian, a friend of the family, who resided at Ben Wheeler, Tex., saying:

"We will reach Wills Point on train to-morrow night. Meet us."

Wills Point is the railroad station nearest to Ben Wheeler. At the request of plaintiff, the defendant's operator at Lubbock prepared the message and mistakenly addressed it to A. J. Evans.

The telegraph company pleaded the contract was a written contract; that the operator was, for the purpose of preparing the message, the agent of plaintiff; that there was a stipulation upon the blank form upon which the message was written to the effect that the company would not be liable for damages unless the claim was presented, in writing, within 95 days after the cause of action should accrue; that such stipulation was reasonable; and that plaintiff did not present his written claim until more than 95 days after his cause of action accrued.

The defendant also pleaded contributory negligence on the part of plaintiff, and the cause was submitted upon special issues as follows:

"(1) Was the plaintiff prevented from attending his mother's funeral because of the defendant's alleged failure, if any, to use ordinary care in undertaking to notify the plaintiff of the nondelivery of the telegram to A. J. Adrian."

To this the jury answered, "Yes."

"(2) What amount of damages, if any, do you find in favor of the plaintiff? Answer in dollars and cents."

They answered, "$500."

At the request of defendant, its special issue No. 1 was submitted as follows:

"(a) Did plaintiff file or cause to be filed, in writing, a claim for damages, if any be sustained, within 95 days after the cause of action of plaintiff, if any he has, accrued? Answer: Yes.

"(b) Was a period of 95 days from the date of the message in suit a reasonable time in which plaintiff could file in writing his claim for damages, if any, he sustained? Answer: Yes."

Also, there was submitted at the defendant's request its special issue No. 2 as follows:

"(a) Was plaintiff or his agent guilty of negligence in writing the message for transmission at Lubbock, Tex.? Answer: Yes.

"(b) If you answer the preceding subdivision, `Yes,' then did such negligence on his part or the part of his agent, if any, contribute to cause the failure to deliver the message in suit? Answer: Yes."

Upon this verdict the trial court rendered a judgment for the plaintiff in the sum of $500, with interest, which judgment, as has been stated, was affirmed by the Court of Civil Appeals. The opinion of that court states:

"While the jury found that plaintiff was guilty of contributory negligence — a finding which we are not able to approve — nevertheless it can have no bearing upon this branch of the case."

The case was affirmed upon the defendant's negligence in failing to service the...