Western Union Telegraph Co. v. Austlet

• Decision Date: 15 January 1909
• Citation: 115 S.W. 624
• Parties: WESTERN UNION TELEGRAPH CO. v. AUSTLET. SAME v. DELCHER.
• Court: Texas Court of Appeals

115 S.W. 624

WESTERN UNION TELEGRAPH CO. v. AUSTLET.

SAME v. DELCHER.

Court of Civil Appeals of Texas.

January 15, 1909.

Rehearing Denied February 9, 1909.

Appeal from Orange County Court; W. J. Wingate, Judge.

Actions by Jack Austlet and by James B. Delcher against the Western Union Telegraph Company. Judgment for plaintiff in each case, and defendant appeals. Affirmed.

F. J. & R. C. Duff, A. L. Davis, and H. P. Barry, for appellant. W. O. Huggins, for appellees.

REESE, J.

This is a suit in the county court by Jack Austlet against the Western Union Telegraph Company, to recover damages for negligent failure to promptly transmit and deliver to him a telegraph message delivered to defendant at La Fayette, La., by James B. Delcher addressed to plaintiff at Orange, Tex., said message being as follows: "J. Austlet, Mgr. Opera House, Orange, Texas. Have wagon at train and stage set with center door; have fancy brass bed and all available furniture. Delcher." Damages were claimed in the sum of $250, less $15 expense of lighting the opera house. It was alleged substantially in the petition that Delcher was the manager of a theatrical troupe traveling through the country, and that plaintiff, who was the manager of the opera house at Orange, had arranged to have said troupe give a performance of a certain play in Orange on the night of November 1, 1907. The message related to said performance. It was delivered to defendant's agent at La Fayette, La., about 5 o'clock p. m. November 1st, and was not received by plaintiff until next day. By reason of the negligent failure to deliver the message there was no performance. The damages claimed were based upon the amount of tickets that could have been sold. Upon trial without a jury the court rendered judgment for plaintiff for $165, from which defendant appeals.

It will only be necessary to pass upon two questions raised by the assignments.

First. It is contended that the damages claimed were speculative, and too uncertain of definite ascertainment to authorize a recovery. The evidence showed that appellee had sold and received the money for $170 worth of tickets, and that $167 worth had been set aside upon orders, but not taken or paid for. In addition to these appellee testified that he had been the manager of the opera house the entire season, and from his experience of the attendance upon similar performances in his judgment he would have received for admission to this performance, if it had been given, $600, of which his share would have been 30 per cent., out of which he would have had to pay $15 for lighting. The estimate of the probable amount of receipts was not altogether speculative, even as to those in addition to the tickets sold and those spoken for. That they could not have been estimated with accuracy will not bar appellee of a recovery of his damages, proximately caused by appellant's negligence, if there be some basis or standard from which they may be approximately estimated with a reasonable degree of certainty. "It is not a sufficient reason for disallowing damages claimed that a party can state their amount only approximately. It is enough if from proximate estimates of witnesses a satisfactory conclusion can be reached." 13 Cyc. 37. We think this rule applies here. It was shown how many tickets had been sold and spoken for. With this, and the experience as to the attendance upon former theatrical performances of the same general character, we think that the attendance which might be reasonably expected in the circumstances...