Western Union Telegraph Co. v. Cook

• Decision Date: 23 January 1907
• Parties: WESTERN UNION TELEGRAPH CO. v. COOK.
• Court: Texas Court of Appeals

99 S.W. 1131

WESTERN UNION TELEGRAPH CO. v. COOK.

Court of Civil Appeals of Texas.

January 23, 1907.

Rehearing Denied February 27, 1907.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by C. R. Cook against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Arch Grinnan, for appellant. Wilkinson & Lee, for appellee.

EIDSON, J.

This is an action by appellee against appellant for damages for failure to promptly transmit and deliver a certain telegram. The trial before court and jury resulted in a verdict and judgment in favor of appellee for the sum of $750.

By its first assignment of error appellant contends that the court below erred in giving to the jury the paragraph of its charge which authorized a recovery by appellee if appellant received the message at its Dallas office, and thereafter failed to exercise proper diligence in its transmission and delivery, upon the ground that appellee's pleadings did not raise that issue. We do not think this contention of appellant can be sustained, in view of the record. We are of the opinion that the following allegations embraced in appellee's petition: "That said message was not transmitted and delivered as early as 9 o'clock on the night of April 17, 1904, and was not promptly transmitted and delivered at all; * * * but, on the contrary, by reason of the negligence and carelessness of defendant's agents and servants, to whom the transmission and delivery of said message was intrusted, such transmission and delivery was grossly delayed, and it was not delivered to plaintiff or his home, which is in said town of Blanket, till about 10 o'clock a. m. April 18, 1904"—in connection with those quoted by appellant in its statement under this assignment, properly raised the issue which was submitted to the jury. The agents and servants of appellant mentioned in the quotation above included those at Dallas and those handling the message subsequent to its receipt at Dallas. We think the allegations to the effect that the agent and operator of appellant, when he received the message, then and there agreed, promised, and contracted with the sender that he would rush same through to its destination, and deliver it to appellee as soon as possible, charges a contract upon the part of appellant, especially in the absence of a special exception.

The court in its main charge properly instructed the jury on the issue as to office hours, and it was within the apparent authority of appellant's agent and operator to make the contract complained of; and appellee would not be bound by any rule of appellant of which he had no knowledge. Hence we overrule appellant's second assignment of error.

Appellant's third and fourth assignments of error are not well taken. It was alleged, and the testimony tended to prove, that the message was sent for appellee's benefit, and that he was damaged by the delay in its transmission and delivery. It is unimportant as to whose agent the sender of the message was, or whether he was previously instructed to send same. The party who, in fact, was to be served and who was damaged, is authorized to maintain the suit. Western Union Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Same v. Beringer, 84 Tex. 38, 19 S. W. 336.

We overrule appellant's fifth assignment of error for reasons stated in disposing of its second. We think the evidence warranted the jury in finding that appellant agreed to rush through and promptly deliver the message, and we do not think the fact that appellee was not at home at the time the message would have been received at Blanket, had it been properly transmitted, would relieve appellant as matter of law from the exercise of ordinary diligence in delivering the message to him or notifying him of its receipt, but it was a question of fact for the jury...