Western Union Telegraph Co. v. McGaughey

• Decision Date: 20 November 1917
• Docket Number: (No. 216.)
• Citation: 198 S.W. 1084
• Parties: WESTERN UNION TELEGRAPH CO. v. McGAUGHEY.
• Court: Texas Court of Appeals

198 S.W. 1084

WESTERN UNION TELEGRAPH CO. v. McGAUGHEY.

(No. 216.)

Court of Civil Appeals of Texas. Beaumont.

November 20, 1917.

Appeal from District Court, Montgomery County; J. Llewellyn, Judge.

Action by Mrs. Mattie E. McGaughey against the Western Union Telegraph Company. Judgment for plaintiff and defendant appeals. Affirmed.

Opinion modified on motion for rehearing, 198 S. W. 1174.

Dean, Humphrey & Powell, of Huntsville, and J. T. Rucks, of Conroe, for appellant. W. N. Foster, of Conroe, and F. McDonald, of Montgomery, for appellee.

BROOKE, J.

This is an action for damages originally instituted on August 27, 1914, by appellee against the appellant for the alleged negligent delay in the transmission and delivery of the following message, to wit:

                         "North Zulch, Texas, April 17, 1914
                

"Josh McGoy, c/o Mrs. McGoy, Montgomery, Texas—Tell mother come at once. Think John is dieing. Bud McGoy."

There was some dispute with reference to whether the telegram, as sent, was addressed "McGoy" or "McGaughey." The action was for the sum of $1,900, alleged to have been suffered by the plaintiff in the nature of mental anguish on account of her failure to attend the funeral of her son John, and view his remains. The said message was delivered to the agent of appellant about 8 o'clock on the night of April 17, 1914, and was finally delivered to Josh McGaughey on the morning of April 18, 1914, about 8:30 o'clock. The plaintiff alleged that she was unable, after receiving said message, to reach North Zulch in time to attend the funeral of her son, which occurred there on the afternoon of April 18, 1914, at about the hour of 4 o'clock.

The appellant answered by general and special exception, general denial, and also pleaded that the appellee, Mrs. Mattie E. McGaughey, was herself guilty of negligence, in that she made no adequate effort to reach North Zulch in time for the funeral, even after she received the message sued upon. The appellant pleaded that one hour after she received the message sued upon herein, she stood idly by and watched her son Josh get into a buggy and drive to Bobbin and there take a train for North Zulch; that the said Josh McGaughey arrived at North Zulch about noon of the said 18th day of April, 1914, in ample time to view the remains of his brother John, and attend his funeral, and that if his mother, the appellee herein, had made any reasonable effort to reach North Zulch in time for the funeral, she could have done so just as her son did. The appellant further pleaded that the appellee was guilty of contributory negligence after receiving the message sued upon herein, in that she made no effort whatever to procure a postponement of the funeral until she could arrive at North Zulch, going all the way by rail, and that but for the almost gross negligence of the appellee in the ways hereinabove set forth, the appellee would not have suffered any damages whatever, because she could and would have viewed the remains of her son, and attended his funeral, even after receiving the message in the transmission of which she alleged the appellant was negligent.

The case was submitted to the jury upon special issues, and upon their findings the trial court entered a judgment in favor of appellee for the sum of $850. The court, in charging the jury, after defining negligence and contributory negligence, submitted to the jury 13 questions, which, together with the answers of the jury to each, are copied in full, as follows:

"Question No. 1. Was the message sued upon herein delivered by Coleman to Frost with the understanding between them at the time that said message might not be delivered until the following morning? (Answer Yes or No.)" Answer of jury: "No."

"Question No. 2. Did the defendant use ordinary care as that term has been hereinbefore defined, in the transmission and delivery of said telegram to Josh McGaughey in said town of Montgomery? (Answer Yes or No.)" Answer of jury: "No."

"Question No. 3. Was such failure, if any, to use ordinary care, as that term has been hereinbefore defined, on the part of the defendant the direct and proximate cause of the failure of the plaintiff to attend the funeral of John McGaughey? (Answer Yes or No.) Answer of the jury: "Yes."

"Question No. 4. Would the plaintiff have attended the funeral of her son John McGaughey, if the message sued upon herein had been promptly delivered to Josh McGaughey in the town of Montgomery? (Answer Yes or No.)" Answer of the jury: "Yes."

"Question No. 5. Did the plaintiff fail to use ordinary care, as that term has been hereinbefore defined, when she failed to take a buggy or other conveyance after receiving the message sued upon herein and going to Dobbin and there taking the T. & B. V. Railway Company's train for North Zulch? (Answer Yes or No.)" Answer of the jury: "No."

"Question No. 6. Did the plaintiff fail to use ordinary care, as that term has been hereinbefore defined, in failing to procure or in failing to attempt to procure a postponement of the funeral? (Answer Yes or No.)" Answer of the jury: "No."

"Question No. 7. What amount of money if paid now will fairly and justly compensate plaintiff for the mental anguish, if any, she suffered on account of being absent from the funeral of her son and failing to see his remains? (Answer, giving the amount.)" Answer of the jury: "Eight hundred and fifty ($850.00) dollars."

"Question No. 8. Did Frost spell out to Coleman the name of the party to whom the message sued on was addressed? (Answer Yes or No.)" Answer of the jury: "No."

"Question No. 9. Did Frost spell out the name of the addressee of said message as McGoy or McGaughey, to said Coleman? (Answer, spelling out the name in the manner same as was spelled out by Frost to Coleman.)" Answer of the jury: ____.

"Question No. 10. If you say in answer to the above that the agent Frost spelled the name of the addressee of said message as McGoy, to Coleman, did Coleman confirm such method of spelling the same? (Answer Yes or No.)" Answer of the jury: ____.

"Question No. 11. Did Coleman use ordinary care, as that term has been hereinbefore defined, in confirming such spelling of said name? (Answer Yes or No.)" Answer of the jury: ____.

"If you answer the above question Yes, then I propound to you the following question:

"Question No. 12. Did such failure, if any, on the part of said Coleman to use ordinary care, as that term has been hereinbefore defined, proximately cause or contribute to the failure, if any, of the defendant to deliver said message within a reasonable time? (Answer Yes or No.)" Answer of the jury: ____.

"Question No. 13. If in answer to questions already propounded you have found that the message accepted by the defendant at North Zulch was addressed to Josh McGoy, if said message had reached the Montgomery office of the defendant so addressed on the night of April 17, 1914, would said message have been delivered to Josh McGaughey promptly? (Answer Yes or No.)" Answer of the jury: "Yes."

The court at the instance of plaintiff gave special charge No. 1 defining the terms proximate cause, and direct and proximate cause, and also at the instance of plaintiff gave special charge No. 2, reading as follows:

"At the request of plaintiff you are further instructed that if you answer question 8 in the negative you will not answer any of the subsequent questions, to wit, questions 9, 10, 11, and 12."

The appellant filed its motion for a new trial, which was overruled by the court, and notice of appeal was given in open court, and in due time the appellant perfected its appeal to this court.

We are confronted, at the outset, with an objection on the part of appellee to the consideration of the first, second, and third assignments embraced in appellant's brief, and it is urged that under the rules and practice prescribed for Courts of Civil Appeals by the Supreme Court, the assignments should not be considered by this court, and appellee, therefore, presents that said assignments be stricken from the record. The following grounds of objection are urged to the consideration of these assignments:

(a) Appellant filed and had incorporated in the transcript separate assignments of error, notwithstanding a motion for new trial had been filed and appears in the transcript, and said assignments of error numbered first, second, and third in appellant's brief are in no way identified or pointed out as embraced in the transcript. No reference to the transcript where said assignments may be found is given either in connection with the assignments as carried in the brief or in the statement following the proposition submitted thereunder.

(b) Appellant's brief fails to make it appear that said first, second, and third assignments, as shown therein were in any way raised by appellant in the motion for new trial in the court below. Said assignments are not shown to be copies of the grounds of error in appellant's motion for new trial, and there is no reference in the brief to show that the issues presented in said assignments were in any manner raised in the motion for new trial.

It is contended that rule 101a (159 S. W. xi) specifically prescribes that in all cases in which a motion for new trial is filed the assignments contained in such motion, or amended motion finally ruled upon by the trial court, shall constitute the assignments of error, and it is submitted that even if it is proper practice to file separate assignments, the assignment carried into the brief should show by appropriate reference to the transcript that it is a copy of some ground of error shown in the motion for new trial. There is nothing in appellant's brief in connection with its presentation of the first, second, and third assignments going to point out that the questions raised were called to the attention of the trial court in the motion for new trial, and as presented they constitute an invitation to this court to...