Western Union Telegraph Co. v. Cates

Decision Date24 March 1926
Docket Number(No. 2608.)<SMALL><SUP>*</SUP></SMALL>
Citation282 S.W. 661
CourtTexas Court of Appeals

Appeal from Lubbock County Court; Charles Nordyke, Judge.

Action by W. V. Cates against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Roscoe Wilson, of Lubbock, and Wm. H. Flippen, of Dallas (Francis R. Stark, of New York City, of counsel), for appellant.

Robt. H. Bean and Bean & Klett, all of Lubbock, for appellee.


The appellee, plaintiff below, sued the telegraph company to recover damages in the sum of $1,000 for alleged negligence in failing to promptly transmit and deliver a message, and negligence in servicing it. The substance of the petition is: That on February 9, 1924, plaintiff's mother died at Goose Creek, Tex.; that A. L Cates, his brother, sent to him at Lubbock, over the defendant's telegraph lines, this message: "Mother is dead. Arrive home three P. M. tomorrow" — which was received by the plaintiff. Upon receipt of said wire, about 4 o'clock Saturday afternoon, February 9th, plaintiff went to defendant's office in Lubbock and informed one of its employees, Alberta Johnson, that he desired to send a message to A. J. Adrian at Ben Wheeler, Tex., for the purpose of informing him that he would reach Wills Point on the train the following night, and requesting the addressee to meet him. That he informed said employee that Ben Wheeler was not on the railroad, and that Wills Point was the station at which he would get off the train to go to Ben Wheeler. That defendant accepted the message for transmission, informing plaintiff that it would have to be transmitted by telephone from Edgewood to Ben Wheeler; that said agents collected from the plaintiff $1 for transmitting and delivering the message; and that said agent reduced the message to writing at the request of plaintiff, the sender, and undertook to render the necessary service, but that defendant and its said agents were careless and negligent in handling the message, in that they erroneously spelled the name of the addressee as A. J. Evans instead of A. J. Adrian, without plaintiff's knowledge or consent, in consequence of which said negligence the message was not delivered; that they were further negligent in that they did not service such message or use ordinary care in undertaking to service the same; that as the natural and proximate result of such negligence plaintiff was prevented from attending the funeral and being present at the burial of his mother, and suffered mental anguish and damages in the sum of $1,000.

The defendant answered, charging that if there was any delay in the transmission and delivery of the message it was due to plaintiff's negligence, since the message was written by plaintiff's agent, Alberta Johnson, on a blank form furnished by defendant, but at the request and under the direction of plaintiff; that plaintiff's said agent understood the name of the addressee to be A. J. Evans; that after the message was written she read it to plaintiff, and he advised her that it was all right; that in writing said message the said Alberta Johnson was not acting as the agent of the defendant, but of the plaintiff — wherefore, the error in said message was due to the negligence of plaintiff.

Defendant further pleaded, in defense, the provision upon the blank form upon which the message was written, to the effect that in case of intrastate messages the company would not be liable for damages or statutory penalties unless the claim was presented in writing within 95 days after the cause of action should accrue. It pleaded that said stipulation was reasonable and valid under the laws of this state, and that plaintiff did not present his written claim to the defendant until May 20, 1924, which was more than 95 days after his cause of action accrued.

By supplemental petition plaintiff, in effect, pleaded non est factum as to the written message and the printed stipulation on the back thereof, alleging that he knew nothing about such stipulation, did not authorize defendant's agent to write the message on such a blank, and never agreed to be bound by it. He further alleged, in substance, that he was not accustomed to writing messages and did not know how to get them up like they should be; that he merely told the defendant what he wished to communicate, advising defendant fully of the circumstances; and that defendant's said agent reduced the same to writing on a piece of paper; that plaintiff at that time was not able to read or write very well, and could not see very well without his glasses, and that it was the custom and duty of defendant and its clerks, under such circumstances, to write out the message, and that the clerk, in doing so, was acting as the agent of the defendant and not of the plaintiff; that the 95 days' limitation for filing the claim for damages is not, and was not, reasonable under the circumstances, in that, among other things, the plaintiff did not have a copy of the message and was unable to secure a copy from the defendant for a month or two thereafter; and that he gave notice as soon as he was able by the use of ordinary diligence to learn that he had a cause of action against the defendant.

The case was submitted to a jury upon special issues, the findings being as follows:

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

"(2) Plaintiff has been damaged in the sum of $500.

"(3) Plaintiff filed, or caused to be filed, in writing, his claim for damages within 95 days after his cause of action accrued.

"(4) Ninety-five days from the date of the message was a reasonable time in which plaintiff could have filed his claim for damages in writing.

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

"(6) Such negligence contributed to the failure of defendant to deliver the message."

Upon this verdict the court rendered judgment in plaintiff's favor for $500. The judgment contains this recital:

"And it further appearing that plaintiff caused to be filed his claim in writing with the defendant company for the damages sustained, as aforesaid, it is the opinion of the court that plaintiff ought to recover, etc."

From the above statement of the pleadings it will be seen that plaintiff does not base his action upon the written contract containing the stipulation with reference to notice, but sues for a breach of an oral agreement to send and deliver his message to Adrian.

The record discloses that the plaintiff had received a wire that his mother was dead. He says that he immediately went to the defendant's office with this wire in his hand and told defendant's operator that he wanted to send a message. He testified that:

Upon reaching the office "I walked up to the Western Union counter that is over there, and told them I wanted to send a telegram. She came up to the counter. She took her pencil and wrote the message for me. I did not dictate it to her; I just told her what I wanted, and she wrote it out for me. I told her I never had wrote a telegram and wanted to make it as short as possible. I didn't write the telegram, and don't think I had it in my hands. As she wrote the message she was standing on one side and I was standing on the other side of the counter, about two feet, something like that, across."

He says that the reason she wrote it was that he could not see very well without his glasses. The operator testified that it was the custom of the company's operators to write out messages for people who could not write out their own messages; that she wrote the message for plaintiff because he said he could not see well, and that —

"After writing this message for him, I reread it to him, and he didn't catch any errors in it, and did not comment on it in any way."

The message as written by her is as follows:

"We will reach Wills Point on train tomorrow night. Meet us."

The operator did not testify that she read the name of the addressee, but only the message itself. Plaintiff says he did not know anything about what was on the back of the paper upon which the operator was writing. The defendant's employee did not have a very clear recollection of the transaction. She testified:

"I don't remember any conversation that came between myself and W. V. Cates at the time the message was given to me. It has been so long ago I don't just remember what I did say."

The plaintiff testified that he did not know that the paper upon which the operator wrote the message contained any stipulations whatever, and further said that it was his best recollection that the message was not read over to him by the operator after she wrote it. She said she thought she read it over to him. One reason he gave for believing that the message was not read to him after it was written is that it states that he would reach Wills Point on the train. He said he had no such intention, but intended to go, and did go, from Fort Worth to Dallas on the interurban, and from Dallas to Wills Point by jitney. He further states that at the time he gave her the oral message he spelled the name of the addressee, Adrian, for her, to be sure that she would get it correct, and that he also gave her his address in Lubbock as 1605 Avenue E. The copy of the telegram introduced in evidence has that address upon it.

The first contention to be considered relates to the alleged failure of the plaintiff to give notice of his damages within 95 days after the cause of action accrued. When the question of notice of a claim for damages arises in a case against a common carrier, the rule is that the carrier must both plead and prove that the stipulation in the contract is reasonable, and it is further held...

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3 cases
  • Miller v. Fenner, Beane & Ungerleider
    • United States
    • Texas Court of Appeals
    • November 1, 1935
    ...Blum v. Moore, 91 Tex. 273, 42 S. W. 856. In Western Union Telegraph Co. v. Cates, supra, it appears that the Court of Civil Appeals (282 S.W. 661) had indicated a doubt whether there was any evidence to sustain a particular finding necessary to support the judgment held to be sustainable o......
  • Western Union Telegraph Co. v. Scarborough
    • United States
    • Texas Court of Appeals
    • November 4, 1931
    ...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. The appellant alleged that the ninety......
  • Western Union Telegraph Co. v. Cates
    • United States
    • Texas Supreme Court
    • February 23, 1927
    ...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 Roscoe Wilson, of Lubbock, and Wm. H. Flippen, of Dallas, for plaintiff in error. Robt. H. Bean and ......

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