Western Union Telegraph Co. v. Freeland

• Decision Date: 05 December 1928
• Docket Number: (No. 3135.)
• Citation: 12 S.W.2d 256
• Parties: WESTERN UNION TELEGRAPH CO. v. FREELAND et al.
• Court: Texas Court of Appeals

Page 256

12 S.W.2d 256

WESTERN UNION TELEGRAPH CO. v. FREELAND et al.

(No. 3135.)

Court of Civil Appeals of Texas. Amarillo.

December 5, 1928.

Rehearing Denied January 9, 1929.

Appeal from Lubbock County Court; Chas. Nordyke, Judge.

Action by Mrs. J. A. Freeland and husband against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Wilson & Randal and J. I. Kilpatrick, all of Lubbock, Wm. H. Flippen and John W. Miller, both of Dallas (Francis R. Stark, of New York City, of counsel), for appellant.

Bean & Klett and Robert H. Bean, all of Lubbock, for appellees.

RANDOLPH, J.

This suit was filed in the county court of Lubbock county by Mrs. Freeland, joined pro forma by her husband, to recover of appellant damages for negligence in the delivery of a telegram informing her of her father's death in time for her to attend his funeral. On trial before a jury in that court, judgment was rendered for the plaintiff, and appeal has been perfected to this court.

This case has been before this court before, in an effort by the company to have the district court and this court mandamus the county judge to compel him to enter a judgment in favor of the appellant herein, upon the verdict of a jury on a former trial. Western Union Telegraph Co. v. Nordyke (Tex. Civ. App.) 4 S.W.(2d) 633.

The one controlling question on this appeal is: Was the stamping, addressing to Mrs. Freeland, and mailing of the telegram to the post office box 102, as given in the telegram, a compliance with the company's contract to deliver same to her?

The following telegram was delivered to the appellant on the day named therein: "Dallas, Texas, 10:30 A. M., October 31, 1926. Mrs. J. A. Freeland, Box 102, Lubbock, Texas. W. L. Waggoner died this morning at 9 o'clock. Estelle Waggoner."

The above telegram was received at Lubbock by the appellant company on the morning of the same day and was placed in an envelope addressed to Mrs. Freeland, Box 102, Lubbock, Tex., and was stamped and put into the post office at Lubbock. Mrs. Freeland did not receive the telegram until Tuesday night about dark. One of her sons appears to have obtained the telegram from the post office box on Tuesday evening and carried it to his mother. Mr. Freeland was out of town at the time. Mrs. Freeland then, at 7:58 p. m., Tuesday, November 2, 1926, sent the following telegram to her sister, Estelle Waggoner: "Telegram received. Be there tomorrow." This telegram did not reach Estelle Waggoner until after the burial of the father, W. L. Waggoner, and Mrs. Freeland, of course, did not arrive in Dallas in time to attend her father's funeral. Mr. and Mrs. J. A. Freeland resided at Twenty-Seventh and S streets, Lubbock, Tex., at or near the intersection of those streets. They had three children — three boys. The oldest was 25 years old and named Durwood and was working for Swift & Co. The second boy, aged 18, was named Huburne, and the third, aged 13, was named Veo. The last two were in school at Lubbock. The names and residence of Mr. and Mrs. Freeland were correctly given in the city directory. The record discloses that the Freelands had neighbors living near them. Veo Freeland testified that he went to the post office twice on Sunday to get the mail for his mother, but did not get the telegram. He did not go after the mail on Monday. Huburne went to the post office between sundown and dark Tuesday evening, and then got the telegram above described and took it to his mother. That was the first notice he had of the death of his grandfather.

Estelle Waggoner testified:

"I delivered the message to the Western Union Telegraph Company by telephone. I delivered the message to them myself. I delivered the message to the Western Union Telegraph Company at Dallas, Texas. I do not know who took said message. I gave the address of Mrs. J. A. Freeland, as Lubbock, Texas, P. O. Box 102. I did not at that time know any better address of Mrs. J. A. Freeland than P. O. Box 102, Lubbock, Texas. I have testified from memory. I offered to pay for the telegram and did pay for same. It was charged to my neighbor's...