Wolff v. Western Union Telegraph Co.

NEILL, Associate Justice. The appellant. Dr. H. T. Wolff, sued. the Western Union Telegraph Company to recover $999 damages, alleged to have been occasioned by negligent delay in delivering to his wife the telegraphic message copied in our conclusions of fact. It was alleged by plaintiff that prior to the morning of February 20, 1905, his wife, Ida A. Wolff, had been suffering with diseases of the bladder, which rendered urination impossible without means of a cathe"ter; that on that morning she was better but her trouble was liable to *35 recur within twenty-four hours, and that plaintiff, being under compulsory process to attend court at San Antonio, left his home in Seguin on the early morning’s train for San Antonio; that before leaving he informed his wife he would return on the night train, provided the case he was a witness in should be disposed of, and that if he could not return he would notify her by telegram, assuring her that if her condition was such as to require his personal attention he would return any way. That at half past five o’clock p. m. on that day he went to defendant’s office in San Antonio, prepared and delivered the message referred to for transmission to his wife, paying' defendant' twenty-five cents for its transmission and delivery. That at the time he delivered the message for transmission he explained to appellee’s agent who received the same that his wife was sick, and he wanted to ascertain whether her condition was such as to require his personal presence at home, and informed him that he (plaintiff) could be found at the Mahncke Hotel, where he would receive the answer to his message. That defendant’s agents were negligent in failing to transmit the message expeditiously, by reason of which it was not received at Seguin until about seven o’clock; that, instead of transmitting it in the name of “Dr. Wolff,” it was incorrectly transmitted so as to read “0. V. Wolff,” and after its arrival at Seguin defendant’s agent negligently delayed its delivery until eight o’clock next morning, too late for it to serve any purpose. That, not having received'the message, plaintiff’s wife, expecting his return that night, made no arrangement to have her bladder treated, and between seven and eight o’clock her trouble was manifest, and her condition rapidly grew worse. That, believing plaintiff would return, she had made no provision for the attendance of any other physician, and her condition grew so critical that she had uranic convulsions, and suffered great physical pain and mental anguish, etc. Conclusions of fact.—The telegram, the alleged negligent failure to properly transmit and properly deliver which, upon which this action is based, is as follows: “To Mrs. Ida A. Wolff, Seguin, T. Can not come home tonight. If necessary, wire me. (Signed thus) O. V. Wolff.” It is in the handwriting of the plaintiff, on the customary sending form of defendant company, is in lead pencil, and was sent from San Antonio on February 20, at 6 p. m. The telegram delivered to Mrs. Wolff is as follows: “San Antonio, Tex., February 20. Mrs. Ida A. Wolff, Seguin, Tex. Can not come home tonight. If necessary, wire me. O. V. Wolff. 7:14 p. m.” The evidence is reasonably sufficient to show that plaintiff’s wife was in the condition and suffered as alleged in his petition. Upon the question as to whether plaintiff notified defendant’s agent in San Antonio, to whom he delivered the message, of its importance, the evidence is conflicting, and would have justified the jury in finding either way. They evidently believed the testimony of defendant. There was no negligence in defendant’s transmitting the message as signed by O. V. Wolff, for the testimony indicates that it would be *36 read that way by one exercising ordinary care, and that no one, without being familiar with the way he wrote “Dr.,” would have taken the letters he used to indicate his profession, or have taken them to be any other than “O. Y.” He may have told the agent that he was a doctor, yet his initials may have been “0. Y.” for aught known by defendant’s agent, as written in the message. The evidence was reasonably sufficient to warrant the jury in finding that, after the message was received by defendant’s agent at Seguin, reasonable diligence was exercised to promptly deliver it to defendant’s wife. Conclusions of lorn.—The first assignment of error complains of this part of the court’s charge: “Unless you believe from the evidence that the defendant had notice that plaintiff would sustain any damages except as such notice appears upon the face of the telegram, and that plaintiff’s wife needed his attention, you will find a verdict for defendant.” Two objections seem to be urged by the assignment: 1. The telegram showed upon its face that it was important. 2. The charge was calculated to mislead and confuse the jury, in that it is uncertain what the court meant by the language used. While the telegram may have shown upon its face it was important, if appellee’s agent was not informed of the facts from which such damages as are claimed may have accrued, it was essential that it indicate upon its face that such damages, or' of a similar nature, might flow from a failure to properly transmit and expeditiously deliver it. Uor plaintiff would only be entitled to recover such damages as might have reasonably been supposed to have been in contemplation by himself and defendant when the contract to transmit and deliver the message was made. It appears from the statement of facts in this case that, upon the trial, plaintiff’s counsel stated to the court “that he did not rely upon the language upon the face of the telegram to charge the defendant with notice of the damages alleged to have been sustained, as set forth in the petition, and that the court, in making up the charge to the jury upon the law, should charge the jury that the defendant must have had notice of the facts set forth in the petition, upon which plaintiff’s damages arise, from some other source than that contained upon the face of the telegram, and that the court indicated to counsel at the time, and before the charge was prepared and given, that it would conform to the views of plaintiff’s counsel in reference to the notice of the damages in. preparing and submitting the charge upon the law.” If it were not apparent from the face of the message that it furnished no intimation that damages of the nature claimed were contemplated by the parties, the statement of plaintiff’s counsel authorized the court to place that construction upon it, and precluded plaintiff from complaining of the charge in which it was done. (Gresham v. Harcourt, 93 Texas, 157.) In arguing the second objection, plaintiff says in his brief: “If it was the view of the court that the telegram was not sufficient to put appellee on notice of its importance, or to require of appellee an inquiry *37 into the relationship of the parties, and if it was not sufficient to notify appellee that damages might result to appellant or to his wife, then it was incumbent upon the court to say so in plain and intelligible language, and then charge the jury that, unless such notice was given appellee through other means than the telegram, they could not find for appellant.” It does not occur to us that, when the portion of the charge complained of is taken in connection with the other parts of the charge, any other construction than that deduced and expressed by appellant’s counsel can be placed upon it. If, however, any other construction could have been given the charge, it would have been to the prejudice of the appellee, not to appellant. By the second assignment of error it is contended that, in any event, plaintiff was entitled to recover the twenty-five cents toll paid defendant for transmitting the message, and that the court erred in not submitting such matter to the jury. Clearly, the plaintiff was not entitled, as a matter of law, to recover such toll; for, unless defendant was guilty of the negligence alleged, it was not recoverable. But if plaintiff was not satisfied with the charge, it was incumbent upon him to ask a special charge submitting such issue. The third assignment complains that the court erred in failing to construe the telegram as sufficient upon its face to notify defendant of its importance, and, unless promptly delivered, the damages claimed by plaintiff were such as might have been contemplated by the parties at the time the message was received for the transmission. 'What we have said in disposing of the first assignment of error is applicable to and conclusive of this one. The rule is that, "when it appears to the court that the telegram upon its face does not apprise the. telegraph company of the peculiar damages sought to be recovered, it becomes the duty of the court to charge the jury to find for the defendant, unless the company had notice of such damages from some other source.” (Western U. Tel. Co. v. Kirkpatrick, 76 Texas, 217; Western U. Tel. Co. v. Smith, 76 Texas, 254; Western U. Tel. Co. v. Ragland, 61 S. W. Rep., 421.) It is contended by the fourth assignment of error that the court erred in failing to charge the jury that, if they found from the evidence that plaintiff notified defendant of the importance of the telegram, and that he was a physician, and the husband of the person named in the message, and that she was sick, and that he desired to ascertain whether or not she needed his services, that, under these circumstances, the damages claimed by the plaintiff were in contemplation of the parties at the time of the delivery and transmission of the telegram. No such charge was requested by appellant, as was incumbent upon him. Ordinarily, if the court omits to charge upon a particular phase of a case, and a party desires an instruction upon it, it is his duty to request it, and his failure to do so is conclusive against him. If, however, such a charge as indicated by the assignment had been requested by plaintiff, it would have been on the weight of the evidence, in that it states to the jury, upon their finding certain facts, it would follow that the damages claimed were in contemplation of the parties. It would have been for the jury to say, and not the court, upon the proof of such facts, what damages were contemplated. *38 "When the reputation of a witness for truth has been impeached, and it is sought to support his reputation by the testimony of other witnesses, the predicate must be first laid by showing that such supporting witnesses are acquainted with his general reputation in the neighborhood in which he lives for truth and veraeitjq before they can testify to what it is. This was not done in this case. Therefore we overrule the fifth assignment of error. The sixth, seventh, eighth and ninth assignments are directed against the charge. After carefully considering them, we have concluded that none of them presents any affirmative error. The charge, taken as a whole, as far as it goes, correctly presents the law of the case. If there is any error in it it is of omission, which should have been supplied by plaintiff’s requesting special charges. The judgment is affirmed. Affirmed.