Western Union Telegraph Co. v. Swearingen

*423 WILLIAMS, Associate Justice. Defendant in error recovered judgment for damages for the alleged negligent delay of plaintiff in error in-delivering a telegram announcing the death of a son of defendant in error, in consequence of which intelligence he was denied the opportunity of attending his son’s funeral. The petition alleged that on August 1, 1899, plaintiff’s son was killed', at Fort Worth, and that about 1 o’clock on that day the wife of deceased: caused to be delivered at defendant’s office in that city for transmission., and delivery to plaintiff at Comanche the following telegram: “Fort Worth, 8-1-99. To Green Swearingen: Come. Frank is dead. Mrs. Swearingen;" that defendant received the message, and, in consideration of the charge paid, agreed to deliver the same with reasonable diligence and in reasonable time to plaintiff at Comanche, Texas; that the telegram was received at defendant’s Comanche office about 2 o’clock on August 1, 1899; that its agent there, upon inquiry, learned that plaintiff was at his home six or seven miles from the city of Comanche, but that one of plaintiff’s neighbors was in town and was pointed out to the agent, and informed the latter that he would carry and deliver the message to plaintiff the same evening or pay any charges for such delivery; that the agent refused to deliver the telegram to such neighbor or tell him the contents of it, and refused to in any way deliver it to plaintiff; that this neighbor was a reliable man who would have delivered the message to plaintiff, and the agent did not refuse to deliver it to him because of any distrust of him and made no inquiry as to his reliability, etc.: that the agent thereupon sent an office message to its Fort Worth office, stating the fact that plaintiff lived seven miles in the country, and that the party representing Mrs. Swearingen in sending the message must> pay an extra charge for delivery of the telegram, and that upon receiving this notice such agent guaranteed the additional charge, but that the defendant still failed to deliver the message until August 4th. There are many other allegations in the petition, but it is upon those stated that the decision depends, as there are no others attempting to show a breach of defendant’s contract. Ho evidence was introduced to show that Griffith, the neighbor referred to in the petition, proposed to the agent of defendant to pay the cost of sending the telegram to plaintiff at his home; and no attempt was made to establish the allegation that the cost of such a delivery was guaranteed by the party who sent the message. The recovery, therefore, must be sustained, if at all, upon the failure of the company to send out the message-by Griffith, the neighbor, or to deliver it in some other way. The insuperable objection to a recovery upon either ground is that the-undertaking of defendant upon receipt of the telegram, as alleged in the petition, was to deliver to plaintiff at Comanche, and not to send it to-him at his home, if delivery could not be made at Comanche. As no-duty was alleged to deliver at plaintiff’s home, its refusal to send the-message by Griffith or otherwise would not, under the facts stated in the= *424 pleading, give rise to a cause of action. Whether or not the evidence ¡showed a contract under which it was the duty of defendant to use reasonable diligence to deliver the message to plaintiff at his home without ^payment or guaranty of the additional cost, we need not determine, since the petition neither alleged such a contract nor stated the facts from "which it could be inferred. Telegraph Co. v. Henry, 87 Texas, 165. It is urged that the ground upon which we rest our opinion was not ^presented in the briefs in the Court of Civil Appeals. We think it was. By the assignments of error and propositions, complaint was made, in various forms, of the charge of the court and the verdict of the jury for holding defendant liable for its failure to send out the message by Griffith, when no such liability was shown by either pleadings or evidence. This involved the point which we decide. It is probably true that the attention of the Court of Civil Appeals was not directed to precisely the same view of the petition taken by this court, but the assignments of error and propositions were sufficient to require a consideration of the pleadings. Besides, under the view we have expressed, no cause of action was shown by the petition, except by the allegations which were unsustained by evidence. Reversed and remanded.