Western Union Telegraph Co. v. Moran

• Citation: 113 S.W. 625
• Parties: WESTERN UNION TELEGRAPH CO. v. MORAN.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 28 October 1908
• Court: Court of Appeals of Texas

113 S.W. 625

WESTERN UNION TELEGRAPH CO. v. MORAN.^†

Court of Civil Appeals of Texas.

October 28, 1908.

Rehearing Denied November 25, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by C. Moran against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Webb & Goeth, for appellant. C. S. Robinson, for appellee.

FLY, J.

This is a suit for damages instituted by appellee, alleged to have accrued by failure to deliver within a reasonable time a certain message delivered to appellant, in which was contained information as to the death of her husband in Louisiana, and requesting instructions as to the disposition of the body. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellee for $1,400.

On the evening of September 7, 1906, the following telegram was delivered to appellant at Grosse Tete, La.: "Mrs. C. Moran, North Olive St., San Antonio, Texas: Mr. Moran dead. Advise disposition of remains, details by letter. W. O. Robertson. 10:35 p. m." That message was delivered to Mrs. Moran between 11 and 12 o'clock on the morning of September 9, 1906. The body of Mr. Moran was buried at 6 o'clock p. m. on September 8, 1906. The deceased, husband of appellee, was working for W. O. Robertson at the time of his death, near Grosse Tete, La., which could be reached by railroad in 24 hours from San Antonio. The message was sent by Kendall, who was working for Robertson. Appellee immediately sent a telegram to W. O. Robertson on September 9th, asking as to what disposition had been made of the remains, and next day received a message that they had been buried at Rosedale, La. A reasonable time for the delivery of the message to appellee would have been 2 hours, and it was delivered in about 40 hours. Robertson was not in Louisiana at the time of the death of appellee's husband, and knew nothing about the message which was sent in his name to appellee. Mrs. Moran would have telegraphed for a postponement of the funeral had she received the message promptly, and the funeral would have been postponed.

The following allegations appear in the petition:

"And plaintiff further says if defendant had delivered the message to her at any time during September 7th, or on the morning of September 8th, she would have at once answered the same by telegram and had her husband's remains at once shipped to San Antonio, plaintiff's home, and the same could and would have reached San Antonio in time for plaintiff to have viewed and looked upon the face of her husband, and to attend and be present at his funeral, and the children of plaintiff and deceased to have viewed and looked upon the face of their father once more; or that plaintiff would have promptly telegraphed to W. O. Robertson to hold the body of her husband, that she would come to the burial, and she would have at once gone to Grosse Tete, La., with the children, and been present at the funeral and burial of her husband, and the remains would have been withheld from burial until she, together with the children, could be present at the burial of her husband in Louisiana. Or plaintiff would have gone to Grosse Tete, La., and directed the disposition of her husband's remains, or wired advice and made proper arrangements for his burial. But not receiving any answer from plaintiff to the aforesaid telegram, plaintiff's husband was buried by strangers at Grosse Tete, La., at about 6 o'clock p. m., September 8, 1906.

"That plaintiff desired to see her husband's face once more and to be present at his funeral, and desired that the children should once more look upon the face of their father and be present at the funeral. But when plaintiff received said message it was impossible for her to have gone to the burial of her husband or have his remains shipped to San Antonio; the said message having been received too late. Plaintiff further says that had a message been telegraphed by her to W. O. Robertson in answer to the one sent to her under his name and received, stating that plaintiff desired the remains of C. Moran, her husband, shipped to San Antonio, that the same would have been promptly shipped as directed by plaintiff, and she would have had the funeral of her husband take place in San Antonio from her home, and she, together with the children, could have attended the same, and they would have done so, or the body of her husband would have been kept out of the grave till she arrived in Louisiana and was present at the burial."

It is the contention of appellant that it was fundamental error for the court to instruct the jury as to their verdict if they found "that if she had sent such message the person or persons having charge of said body would have been advised of the contents of said message, if any, and would have postponed said burial." What appellant deems to be a fundamental error in the charge copied does not clearly appear, but we conclude from the statement that "the charge with reference to all other persons, except W. O. Robertson, submits an independent, material, and indispensable question of fact not found in the petition," that it is the ground upon which claim of fundamental error is based. The claim is untenable. The allegations of the petition, while general, justify the charge.

The message to appellee was sent by one Kendall, the timekeeper of W. O. Robertson, in the name of the latter, who was at the time in San Antonio, Tex., and could not have received any reply to the message sent to him at Grosse Tete, La., and through the first assignment of error the claim...