Western Union Telegraph Co. v. Buchanan

• Decision Date: 18 May 1910
• Citation: 129 S.W. 850
• Parties: WESTERN UNION TELEGRAPH CO. v. BUCHANAN.
• Court: Texas Court of Appeals

129 S.W. 850

WESTERN UNION TELEGRAPH CO. v. BUCHANAN.

Court of Civil Appeals of Texas.

May 18, 1910.

Rehearing Denied June 22, 1910.

Appeal from District Court, Lavaca County; M. Kennon, Judge.

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

Hume, Robinson & Hume, for appellant. Patton & Schwartz, for appellee.

NEILL, J.

The appellee, Lizzie Buchanan, and Rachel Buchanan are sisters, and daughters of John Buchanan, and on July 2, 1908, their home was in Hallettsville, Tex., and the deceased members of the family were interred in the cemetery there. On the day stated Lizzie was in Ellinwood, Kan., on a visit, and Rachel was in Mangum, Okl., visiting relatives there. Their father, who was then at home, having learned that Rachel was sick, communicated to defendant's agent and telegraph operator at Hallettsville, by telephone, this message: "To Lizzie Buchanan, Ellinwood, Kansas. Rachel is sick at Mangum. Please go at once and assist in nursing her. John Buchanan"—which said agent received over the phone, as was customary at said office, wrote it down as received, and promised and undertook in behalf of the Western Union Telegraph Company, for the usual toll, which was paid by the sender, to transmit the message over defendant's wires and deliver it to Lizzie at Ellinwood as it was delivered and received by him from her father at Hallettsville, but through the negligence of defendant's agent the wording of the message was so changed as to read as follows: "Hallettsville, Texas, July 2, 1908. To Lizzie Buchanan, Ellinwood, Kansas. Rachel is sick at Mangum. Please come at once and assist in burying her. Jno. Buchanan." And in its form, thus changed, the telegram was delivered to Lizzie in Ellinwood on the morning of July 3, 1908. Wherefore the plaintiff was induced from the telegram as delivered to her to believe that her sister Rachel was dead, and that her remains would be interred in the cemetery at Hallettsville by the time she could reach there by rail. Therefore she took the first train from Ellinwood, Kan., to Hallettsville for the purpose of reaching there in time for the burial, and while en route, at Wallis, Tex., she learned from inquiry by telephone that her sister was not dead. She then continued her journey to Hallettsville, and, learning the condition of Rachel on arriving there, took the next train out for Mangum, Okl., so as to be with her sister and nurse her through her sickness. From the time she received the telegram until she learned at Wallis that her sister was not dead, plaintiff suffered great pain and distress of mind, induced by the belief that her sister was dead, which was proximately caused by defendant's negligence in changing the wording of the telegram. She sued the defendant to recover damages for the mental anguish she suffered by reason of such negligence, as well as the expenses she incurred by reason of such negligence in going from Ellinwood to Hallettsville, and thence to Mangum, where her sick sister was. The defendant's answer consisted of a general demurrer, special exceptions, and a general denial. The case was tried before a jury and resulted in a verdict and judgment in favor of the plaintiff for the sum of $950.

This part of the court's charge: "If you find from the evidence that at the time alleged in plaintiff's petition John Buchanan delivered to the agent of the defendant at Hallettsville. Tex., the telegram as first set out in the statement of the case in this charge, and that said agent undertook for a valuable consideration to transmit and deliver the same to plaintiff at Ellinwood, Kan., and that the same was delivered to the plaintiff at that place on the 3d day of July, 1908, in the altered condition as alleged, then you are charged that to deliver said telegram so altered was negligence on the part of the defendant"—is assigned as error. The only proposition asserted is: "The charge of the court is not based upon the pleadings and the evidence." The proposition cannot be extended beyond that part of the charge complained of. With this limitation, the proposition cannot be sustained. The allegations in the petition are such as clearly to admit evidence of the facts above stated, which were substantially proved on the trial. While the point is not covered by the proposition, it is argued that, inasmuch as the telegraph message was delivered to and received by defendant's agent at Hallettsville by telephone and plaintiff having failed to allege that the agent was in the habit of receiving messages by phone, proof could not be made of such custom. This is a question as to the admissibility of evidence, and should have been raised upon the trial, instead of here. The material question was not the manner of the delivery of the message to defendant's agent, or the form in which it was accepted by him for transmission in the words of the alleged original message. Upon this there was no issue of fact; for the undisputed evidence shows that it was so delivered to and accepted by him for transmission. This being so, it can make no difference whether the delivery and acceptance was by telephone or not. Carland v. Western Union Teleg. Co., 118 Mich. 369, 76 N. W. 762, ...