Womack v. Western Union Tel. Co.

• Decision Date: 10 May 1893
• Citation: 22 S.W. 417
• Parties: WOMACK v. WESTERN UNION TEL. CO.
• Court: Texas Court of Appeals

22 S.W. 417

WOMACK v. WESTERN UNION TEL. CO.

Court of Civil Appeals of Texas.

May 10, 1893.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by A. C. Womack against the Western Union Telegraph Company to recover damages for delay in delivering a message. From a judgment for defendant, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by COLLARD, J.:

There is no brief for the appellee. Appellant in his brief states the nature and result of the case as follows: "This is a suit for damages for the failure to promptly send and deliver a message sent by appellant over defendant's line from Morgan, Tex., to Meridian, the county seat of Bosque county, Tex., a distance of eight miles. Defendant was cited, appeared, and answered, and, among other things, presented a demurrer to plaintiff's petition, because it showed no cause of action of which the district court had jurisdiction. The court sustained the demurrer, and dismissed appellant's suit, he having declined to amend; to all of which ruling appellant excepted. Appellant alleged, in substance, as follows: That about 4 o'clock, on the 16th day of January, 1889, he called on defendant's local agent, at its office, in the town of Morgan, and sent the following message to S. D. Greer, at Meridian, Tex.: `Morgan, Texas, January 16, 1889. To S. D. Greer, Meridian, Texas: Is Fred there? Left yesterday. Answer quick. [Signed] A. C. Womack.' That, at the time said message was delivered to defendant's agent, appellant told him it was to find his lost boy, Fred, who he supposed was at S. D. Greer's, an uncle of said boy. That appellant paid defendant twenty-five cents to transmit said message. That appellant went to defendant's local agent at Morgan after this, and on the same evening inquired for an answer, and received none, but was assured by said agent that his message would be promptly delivered, and requested appellant to go to no further expense, and appellant concluded to wait for 15 or 20 hours; and, failing to still get an answer, he hired a man and sent him on horseback to Meridian, and on the 17th of said month, about 1 o'clock, received a telegram that the boy, Fred, was at S. D. Greer's, in Meridian. That appellant's message was not delivered to said Greer until about 4 o'clock on the 17th day of January, 1889. Appellant alleges that Greer lived within 400 yards of the courthouse and business part of the town of Meridian, and was well and notoriously known in said town, and to defendant's local agent of Meridian, Tex. That defendant undertook to deliver said message to said Greer promptly, and without delay, and that defendant made no effort whatever to deliver same, but was grossly negligent of its duties, etc. That appellant and his wife suffered, during said time said message was not delivered, great physical pain, caused by searching for said lost boy, to his damage in the sum of fifteen hundred dollars, and for mental suffering during said time six thousand dollars." It is also alleged that the message was delivered to defendant's agent at Morgan about 4 o'clock P. M. on the 16th of January, 1889, and by the use of ordinary care on the part of defendant could have been sent and delivered to the addressee in one hour, and that it would have been promptly answered by Greer. It was alleged that the boy was lost; that search had been made in the town and neighborhood from which he had strayed, and no trace or information of him could be found; and plaintiff believing the...