Western Union Telegraph Co. v. Golden

• Decision Date: 13 March 1918
• Docket Number: (No. 1303.)
• Citation: Western Union Telegraph Co. v. Golden, 201 S.W. 1080 (Tex. App. 1918)
• Parties: WESTERN UNION TELEGRAPH CO. v. GOLDEN et ux.
• Court: Texas Court of Appeals

201 S.W. 1080

WESTERN UNION TELEGRAPH CO. v. GOLDEN et ux.

(No. 1303.)

Court of Civil Appeals of Texas. Amarillo.

March 13, 1918.

Appeal from District Court, Hunt County; Wm. Pierson, Judge.

Action by C. N. Golden and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Flippen, Gresham & Freeman, of Dallas, and Neyland & Neyland, of Greenville, for appellant. Evans & Shields, of Greenville, for appellees.

HALL, J.

C. N. Golden and wife sued appellant telegraph company to recover damages for failure to promptly deliver a telegram sent by Neal Townsend from Tenaha, Tex., to C. N. Golden at Greenville, Tex. The message was delivered to appellant's agent at Tenaha September 9, 1916, at 9:50 o'clock p. m., and was not delivered to plaintiffs, it is alleged, until September 11th at 4 o'clock p. m. The language of the message is: "Mother died at 7 p. m." It is further alleged that Mrs. Alice Golden, the wife of C. N. Golden, was the daughter of the woman designated as "mother" in the message. It is alleged that if Mrs. Golden had received the telegram promptly on the night of September 9th, she would have left Greenville on a train within a few minutes after its receipt, and would have arrived at Tenaha in time for the funeral of her mother, which took place in the afternoon of September 10th. It was further alleged that Neal Townsend was the brother of Mrs. Alice Golden, and that the defendant, its agents and servants, knew all of these facts, or could have known them by the exercise of ordinary care and diligence. It is further alleged that the plaintiffs have resided in Greenville for more than ten years; that C. N. Golden was, during the month of September, and for a long time prior thereto, engaged in business on the most prominent street in the city of Greenville; that their residence was at such time on a prominent residence street in the western part of town, and that they are and have at all times theretofore been well known to a great number of persons residing in Greenville; that the agents and servants of defendant, by the exercise of the slightest degree of care, could have found Golden and delivered the telegram to him within 30 minutes after the same was delivered to defendant's agent at Tenaha; that, if said telegram had been delivered to C. N. Golden with reasonable dispatch, and in accordance with defendant's contract and duty, Mrs. Golden would have left immediately for Tenaha; that she would have wired a reply to her brother that she was going to take the first train out of Greenville, and that the burial of her mother would have been postponed until her arrival at Tenaha; that when no telegram was received by her brother, Neal Townsend, and she did not arrive on the train of the following day, her mother was buried on the afternoon of September 10th. By reason of such negligence and carelessness plaintiff Mrs. Alice Golden was prevented from attending the funeral of her mother, and was caused to suffer great physical and mental pain, distress, etc. A trial resulted in a verdict and judgment in appellee's favor in the sum of $500.

The first assignment of error is that the court erred in overruling all of the defendant's demurrers, both general and special, to which the defendant at the time excepted, for that the allegations of the plaintiff's petition did not show that the addressee and plaintiff had a wife, and, if so, that she was expected to act on the information contained in the message sued on; the plaintiff suing for the benefit of his wife. Appellee objects to the consideration of this assignment, and, except in so far as it raises the issue of the sufficiency of the petition as against a general demurrer, the objections are sustained. There is no reference in the assignment to the record showing that the assignment urged here was a part of the motion for new trial in the court below. Under the well-established practice this is a fatal defect. We have, however, referred to the amended motion for new trial, and find that the assignment presented in the brief is not a literal copy of the first ground for new trial contained in the motion. By reason of the fact that the addition or elimination of one word may change the entire sense and purport of an...