Western Union Telegraph Co. v. Hill

• Decision Date: 26 June 1913
• Citation: 162 S.W. 382
• Parties: WESTERN UNION TELEGRAPH CO. v. HILL.
• Court: Texas Court of Appeals

162 S.W. 382

WESTERN UNION TELEGRAPH CO. v. HILL.

Court of Civil Appeals of Texas. El Paso.

June 26, 1913.

On Rehearing, December 18, 1913.

Rehearing Denied January 8, 1914.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by C. S. Hill against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed, and motion for rehearing overruled.

Geo. H. Fearons, of New York City, and Beall & Kemp, of El Paso, for appellant. Coldwell & Sweeney, of El Paso, for appellee.

HIGGINS, J.

This suit was instituted by Hill against the appellant for damages alleged to have been sustained by reason of delay in delivery of a telegram delivered to appellant for transmission and delivery to appellee at Ft. Worth, Tex. Upon trial before a jury, verdict was rendered in appellee's favor for the sum of $1,500, and judgment thereon was accordingly rendered.

An inspection of the assignments of error herein as they appear in the record discloses that they do not comply with that provision of rule 25 for the government of the Courts of Civil Appeals (142 S. W. xii) as amended January 24, 1912, requiring assignments to refer to that portion of the motion for a new trial in which the error is complained of. Because of the failure of the assignments of error, as they appear in the record, to comply with this provision of the rule, the same will therefore not be considered. In an opinion rendered upon rehearing in El Paso Electric Railway Company v. Lee, 157 S. W. 748, recently filed, and not yet reported, we at length state our reasons for declining to consider assignments of error which do not comply with said amended rule. We here now refer to this opinion as stating in full our reasons for declining to consider the assignments in this case. We also refer to the following additional authorities: Railway Co. v. Pemberton, 155 S. W. 652; Davidson v. Patton, 149 S. W. 757; Murphy v. Earl, 150 S. W. 486; Railway Co. v. Ledbetter, 153 S. W. 646; Railway Co. v. Gray, 154 S. W. 229; Jones v. Edwards, 152 S. W. 727; Allen v. Kitchen, 156 S. W. 331; Railway Co. v. Emerson, 152 S. W. 469; Nunn v. Veale, 149 S. W. 758; Astin v. Mosteller, 152 S. W. 495; Wright v. Wright, 155 S. W. 1015; Railway Co. v. Cummins, 156 S. W. 542; Elmo Rock Co. v. Sowders, 155 S. W. 270; Lee v. Moore, 162 S. W. 437; Brewer v. Blythe, 158 S. W. 786; Benton v. Kuykendall, 160 S. W. 438; and Railway Co. v. White, 160 S. W. 1128; the last four cited cases recently decided by the Dallas Court of Civil Appeals, and not yet officially reported, but are cited in Railway Co. v. Cummins, supra.

It is a matter of regret to the court that it should be called upon in this cause to enforce the provisions of the amended rules, for the reason that the distinguished counsel who represent the appellant are unusually observant of the rules, and rarely, if ever, has this court been called upon in their cases to overlook violations thereof. In this particular case, the nonobservance was, no doubt, due to an inadvertence, which in turn was doubtless due to the fact that the amendments were of comparatively recent date. We deferred enforcing the amendments until a sufficient time had elapsed to permit the members of the bar to become familiar therewith, and, after the lapse of such time, we deem it our duty to rigidly enforce the same. From the number of records recently filed in this court in which the amendments are disregarded, it is evident that in no other manner can their observance be enforced.

Affirmed.

On Rehearing.

The action of the Supreme court in granting a writ of error in El Paso Electric Railway Co. v. Lee, 157 S. W. 748, indicates its disapproval of this court's holding that rule 25 (142 S. W. xii) requires that assignments of error shall refer to that portion of the motion for a new trial in which the error is complained of. It therefore becomes our duty to pass upon the assignments of error herein, which we originally declined to do, because of their failure to comply with the rule indicated.

On February 26, 1910, appellee filed suit against the appellant to recover the sum of $1,950 damages, alleged to have been sustained by reason of alleged delay in the transmission and delivery of a telegram, advising him of the illness of his wife. It was averred that on February 27, 1909, plaintiff was temporarily in Ft. Worth, Tex., and his wife was quite sick at his residence in the city of El Paso, which sickness was unknown to him; and on the morning of that day, Dr. King, the attending physician of his wife, acting as his agent, caused to be delivered to defendant, the following telegram: "Feb. 27, 1909. To C. S. Hill, Ft. Worth, Texas, care of J. C. Hill First National Bank. Mrs. Hill has La Grippe, think best you come. [Signed] Dr. King." That upon the delivery of said telegram, defendant's agent in charge of the receiving office, and to whom the message was delivered, was informed that the matter was one of life and death. That said message was received by defendant for transmission and delivery to plaintiff or to said J. C. Hill, and that defendant knew of the condition of plaintiff's wife and her relationship to him; that defendant negligently failed to transmit and deliver said message to plaintiff or to said J. C. Hill at said First National Bank, or anywhere else, although several times during the day mentioned, after the time said message should have reached Ft. Worth, plaintiff was at defendant's office in Ft. Worth and inquired of defendant's agents in said office if they had any message for him. That he was at such office and made such inquiries because he was then expecting to receive a telegram on other matters from another point; that if said message had been delivered to plaintiff or any one for him in due time, he could and would have at once started for El Paso, and would have reached there about noon on February 28th; that his wife's sickness almost immediately developed into pneumonia, as was natural and to be expected, and as defendant was informed when it received said message for transmission. That El Paso is very high above the sea level and such altitude is a circumstance which renders pneumonia doubly dangerous, and that the best course in cases of pneumonia is to at once remove the patient to a lower altitude, and that, but for defendant's negligence in failing to transmit and deliver said message with reasonable dispatch, the plaintiff would have reached El Paso in time to remove and would have removed his wife to a lower altitude; that by reason of such negligence he did not reach El Paso until noon, March 2d, and found his wife practically unconscious and unable to speak and too weak to be removed, to which condition she had been reduced in the 24 hours just preceding, and that, by reason of said weakness, plaintiff was unable to so remove his wife or to converse with or be recognized by her; that she died a few days after his arrival, without at any time becoming able to speak to or recognize plaintiff, and that her death was in all probability occasioned by the fact that she was not removed to a lower altitude in the time that she would have been removed but for defendant's negligence aforesaid. The usual further allegations were made with reference to the items of his damage, and concluded with a prayer for issuance of citation and judgment for damages.

Defendant answered by (a) general demurrer; (b) special exception to that portion of the petition, "but for the defendant's negligence plaintiff would have reached El Paso in time to have removed and would have removed his wife to a lower altitude, and that but for defendant's negligence he would have removed his wife in time to have saved her life," because the items of damage sought to be recovered by reason thereof were too remote, speculative, and uncertain to authorize a recovery; (c) general denial; and (d) special plea that the petition was filed on February 26, 1910, and that the suit was for damages based upon alleged negligent failure to deliver above message; that on August 16, 1910, a motion was filed by the clerk of the court to require plaintiff to give cost bond, and that the cost bond was not filed until September 7, 1910, and that citation was not issued and served upon defendant until June 8, 1911, more than two years after the plaintiff's cause of action accrued; wherefore the cause of action was barred by the two-year statute of limitation, which was pleaded in bar. Upon trial, verdict in the sum of $1,500 was returned, upon which judgment was rendered, and from which this appeal is prosecuted.

The first assignment complains of the overruling of the special exception above noted, and the fourth, to the action of the court in permitting plaintiff Hill to testify that he would have removed his wife to a lower altitude, and that he believed such removal to a lower altitude was good for diseases such as she was suffering from, and, in his opinion, at that time it was his duty to remove his wife; that he told his brother he was going to move her to Ft. Worth if she was able to be moved, but that she was not removed, because Dr. King told him she was too weak for that purpose. The exceptions should have been sustained and the testimony indicated excluded, but the court in his general charge carefully excluded from the consideration of the jury any elements of damage which they might otherwise have considered in relation to the exception and evidence, and further, at the request of defendant, gave a special charge directing the jury not to consider any of such evidence. This rendered harmless the erroneous action of the court in the respect indicated.

A peremptory instruction was given against appellant upon the issue of limitation raised by its pleading. This is made the basis of the second assignment, and...