Western Union Telegraph Co. v. May

KEY, Associate Justice. 1. Appellees instituted this suit against appellant to recover damages for negligence in the delivery of a telegram, alleged to read as follows: “Alvarado, Texas, December 2, 1891. “Mrs. G. W. May, Taylor, Texas: “Come at once; mother’s dying. “Henry.” *178 2. Counsel for appellant concede in tlieir brief that the objections urged against appellees’ petition can not be maintained without overruling a line of cases, beginning with Stuart v. Telegraph Company, 66 Texas, 580, which permit a recovery of actual damages for mental anguish caused by a failure to deliver a telegram in time to enable the addressee to reach the bedside of a sick relative before death. The Supreme Court is the only tribunal that can properly consider the propriety of overruling a doctrine so well established. The trial court did not err in overruling the demurrers to appellees’ petition. 3. Appellant contends, that the message was not addressed to Mrs. G. W. May, as alleged in appellees’ petition, but to Mrs. G. M. May. The court admitted the original message, and the copy made by appellant’s agent at Taylor and delivered to Mrs. May in evidence (which original and duplicate were sent up with the transcript), and submitted to the jury the question whether or not the middle initial in her name as written in the message was a W.' In some respects the contested letters in both the original and the copy resemble a W, while in others they have the appearance of an M; and there was other evidence bearing on the issue thus submitted to the jury. Except that the issue was submitted as to the copy made by appellant’s agent at Taylor, instead of the original delivered to appellant at Alvarado, we think the course pursued by the court below was correct. 4. The court did not err in refusing to submit to the jury the question of appellant’s notice of the importance of the telegram and the necessity of its early delivery. These were indicated by the terms of the message, and it was proper for the court to so hold as a matter of law. Tel. Co. v. Moore, 76 Texas, 66; Tel. Co. v. Carter, 85 Texas, 580. 5. The contract mpon which the suit was brought contained this stipulation: “The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.” If the Act of the Legislature in reference to such contracts, approved March 4, 1891 (Laws Twenty-second Legislature, page 20), is constitutional, the stipulation under consideration requiring the claim to be presented within sixty days is void. Appellant assails the constitutionality of that act, upon the ground that its title contains more than one subject. We deem it unnecessary to determine the validity of the statute, because, in our opinion, the written notice served upon appellant’s operator and local agent at Taylor within the time required by the contract (which appellant concedes in its brief was done) was a compliance with the terms of the contract. Appellant appears to be a foreign corporation, and while the contract gives the names of its president and its general manager, it does not disclose their headquarters, places of business, or residences. Ruling on this question, the Supreme Court of Georgia, in Telegraph Company v. Blanchard, 68 Georgia, 299, say: “In the refusal to charge, *179 as asked for in the sixth ground of the motion, 'as to plaintiffs presenting their claim for damages within sixty days to some agent of the company authorized to exercise its corporate powers in relation to the -¡subject matter of the claim,’ it appears that the defendant is a foreign corporation, and we think a presentation of this claim for damages within sixty days, as shown by the evidence, to the resident agents of the defendant at Columbus, who made this contract and transmitted the message, is sufficient compliance with the law and rule, and that was all that was required.” The Blanchard case was reaffirmed in the more recent case of Hill v. Telegraph Company, decided by’the same court, and reported in 30 American and English Corporation Cases, 590. A similar ruling, with a satisfactory reason therefor, has been made by the Supreme Court of Indiana, in Telegraph Company v. Yopst, 11 Northeastern Reporter, 16. In that case Chief Justice Elliott says: “It would be unjust to permit a telegraph company to escape liability on the ground that the agent with whom the sender of a message deals has only authority to receive and transmit messages, for the sender can not know who the other agents are, or where they may be found, nor is he bound to inquire for them, but may treat the local agent as possessing authority to transact all business connected with the receipt and transmission of the message. If the company elects to constitute the local agent its representative, it must be held to have invested him with authority to transact all business directly connected with his office, and the acts of the agent respecting such business- must be deemed the acts of the principal.” It is true, in the cases cited, the notices were served upon the local agents who acted for the telegraph company in making the contracts; but when, as in this case, the destination of a telegram is upon the line of the telegraph company whose liability is in issue, and it is shown that its local agent at said point received and delivered the message, we see no reason why notice served upon said agent should not be as binding upon the company as if it had been served upon the local agent who made the contract at the sending office. 6. Appellant asked a special charge in conformity with the doctrine, since announced in Telegraph Company v. Neel, 86 Texas, 368, concerning the right of telegraph companies to make reasonable rules and regulations fixing office hours for their business with the public; and the assignment of error predicated upon the refusal of this charge must be sustained. Appellant averred in its answer, that it had established reasonable office hours at Taylor, Texas, for transacting its business with the public, which hours were from 8 o’clock a. m. to 8 o’clock p. m. of each day. There was evidence tending to prove all these averments; and it was shown that the message reached the Taylor office at 7:30 p. m. The special charge refused embodied the law on this phase of the case, and it should have been given. *180 Delivered September 26, 1894. 7. It is complained that the charge of the court authorized a verdict for the plaintiffs without a finding by the jury that, if the telegram had been delivered in due time, Mrs. May would have taken the night train and reached Alvarado before her mother died; and we think there is merit in the complaint. The charge omits this essential feature of the plaintiffs’ case, and is therefore misleading and erroneous. “A charge which instructs a jury to find for a plaintiff in the event they find certain facts proved by the evidence, and omits one of the facts essential to a recovery, is erroneous, and is not cured by a contradictory instruction given at the request of the other party which makes no direct reference to the erroneous charge. The erroneous charge ought to be withdrawn altogether or corrected by a qualification referring directly to it.” Baker v. Ashe, 80 Texas, 356. It is true that Mrs. May testified, that she was at home in Taylor at that time, and that had she received the telegram half an hour before the night train arrived she would have gone on it; and there was evidence tending to show that said train reached Alvarado about two hours before her mother died; but on a question of that kind — what a person would have done under given circumstances — it is doubtful if a court ought ever to withdraw the issue from the jury and assume the matter to be the one way or the other, no matter how strong the evidence may be. On such an issue, the evidence of the person who it is claimed would have done a' particular thing had not the defendant been remiss in a duty, though important and often controlling, is not conclusive; and all the facts and circumstances may and should be considered in deciding such an issue. 8. The court’s charge is also criticised by appellant because it failed to define negligence. Without holding that this omission constitutes reversible error, we suggest the propriety of supplying it on another trial. In so far as appellant’s other special charges asked and refused embody correct rules of law, they were covered by the main charge given by the court, and no error was committed in refusing to give them. The judgment is reversed and the cause remanded. Reversed and remanded.