Western Union Telegraph Co. v. Fabian

MOUR.SUND, J, This is an action brought in the district court of Grimes county by Will Fabian against the Western Union Telegraph Company to recover damages in the sum of $2,000 for failure of the defendant to deliver a certain telegram addressed to the plaintiff at Cottonwood, Tex. The plaintiff alleged that his father died suddenly June 20, 1913, and that at 4:30 p. m. June 20th a telegram was delivered at Anderson, Tex., for transmission to Cottonwood, advising him of the death of his father, and that he was at the -town of Cottonwood, and if the message had been promptly transmitted he would have received the same in time either to have arrived at Anderson in time for his father’s funeral on June 21st, or else could have notified his relatives to have the funeral postponed until his arrival. It is alleged that the telegram was never delivered by defendant, and the damages sued for are alleged to have resulted from plaintiff’s inability to have attended his father’s funeral. Following its demurrers, exceptions, and denials, defendant specially pleaded that it received the message for transmission at 5:10 p. m. June 20th at Anderson, and that it had no telegraph office at Cottonwood, but only telephone communication with its nearest telegraph station at Cross Plains;, that defendant had to relay the message via four stations in order to communicate with Cross Plains, and then had the message phoned from Cross Plains to Cottonwood; that the Cross Plains offiee was open only from 6 a. m. until 6 p. m.; that defendant promptly transmitted the message and attempted to deliver the same at Cottonwood, but that the plaintiff was never at Cottonwood at any time subsequent to the delivery of such message to defendant at Anderson for transmission; that delivery of such message was impossible; and that plaintiff’s absence from the town of Cottonwood was the proximate causé of defendant’s failure and inability to deliver the message to him and the proximate cause of his failure and inability to be present and attend the funeral of his father. The trial resulted in a verdict and judgment in favor of plaintiff for $1,000. By the first two assignments it is contended that no issue of negligence should have been submitted to the jury, and that a peremptory instruction should have been given in favor of defendant. The third assignment complains of the failure to give a special charge which contains an issue covered fully by the main charge of the court, and unnecessary to be repeated. As a part of the assignment appellant urges certain contentions, which could relate only to the assignments wherein it is contended that there was no issue to submit to the jury. This assignment is grouped, improperly, we think, with the first two assignments. The only proposition relied on under the three assignments is to the effect that, if the facts be as contended by appellant, the negligent delay in transmitting the message could not have been the proximate cause of plaintiff’s damages, and the failure of plaintiff to be at the place where defendant contracted to deliver the message would be the sole, proximate cause. The evidence bearing on this issue is as follows: The message was delivered to the defendant’s agent at Anderson, Tex., by Norris Fabian at 4:30 p. m. on June 20, 1913. When he delivered the message he told defendant’s figent at Anderson that plaintiff’s father-in-law had died at Cottonwood, at Mr. Steve Gafford’s, and that plaintiff had' gone there to attend the funeral. Plaintiff arrived at Cottonwood át about 8 a. m. on June 20th. Cottonwood is a small town, described by the plaintiff as a very small place having “two, three, or four stores.” Plaintiff testified that he left these stores at about 4 o’clock in the afternoon on June 20th, and went to the house of his brother-in-law, Gafford, “a little piece from town, about three-quarters of a mile.” He testified that he remained at his brother-in-law’s house until the next morning about 4 or 5 o’clock, and then went to Cross Plains, arriving there at about 7 a. m. He took the train 'there at 8 a. m. for De Leon, Tex. Mrs. Gafford testified that plaintiff was at her house on June 20th from about 2:30 p. m. until about sundown; that plaintiff and Mr. and Mrs. Gafford then went to Walter Childress’ house and remained overnight; that early the next morning plaintiff and Childress left for Cross Plains. Defendant’s nearest telegraph office was at Cross Plains, a town situated about seven miles from Cottonwood. The messages for Cottonwood were transmitted by telephone from Cross Plains or some other telegraph station. ’ Gaf-ford had a telephone connected with the telephone exchange at Cottonwood. At about 7:30 or 8 o’clock in the morning on June 21st a call was received by the Cottonwood Telephone Exchange from the telegraph operator at Cross Plains for plaintiff in care of Gaf-ford’s. The operator informed Mrs. Gafford that it was a death message. Mrs. Gafford stated that plaintiff had gone to Cross Plains to take the train for De Leon, and requested that the message be delivered to him at Cross Plains or De Leon. Plaintiff had already taken the train,- so the message was not delivered to him at Cross Plains, nor was it ever delivered to him. We are of the opinion that the evidence ■warrants a finding that the negligence of the telegraph company in failing to promptly transmit the message was the proximate cause, of the damages suffered by plaintiff. [1010] Had tile message reached Cottonwood at any time prior to sundown on June 20th, it would undoubtedly have been communicated promptly to plaintiff. The defendant company had been informed that he would be at Gafford’s; in fact, it tried to get him at Gafford’s on the morning of June 21st. The message had to be telephoned to Cottonwood, as defendant knew, and Gafford had a telephone connected with the Cottonwood exchange. The first three assignments are overruled. The fourth assignment of error reads as follows: “The court erred in granting and giving special charge No. 1 requested by plaintiff, which charge reads as follows: ‘Gentlemen of the jury, you are further charged that, although you believe from the evidence that the telegram and message described in plaintiff’s petition was directed to Cottonwood, Tex., still, if you believe from the evidence that the sender of the message actually told the agent of the defendant at Anderson, Tex., where Will Pabian could be found near Cottonwood, Tex., and in obedience to such instructions the agent of the defendant gave the name and address of the party near Cottonwood, Tex., then, if the name of the party was given where Will Fabian could be found, the defendant would not be relieved from the duty of delivering said message to Will Fabian at Cottonwood, but would be required to attempt to deliver the message to Will Fabian at the actual address given’ — in this: The issue submitted to the jury in said charge is not supported by the evidence or any allegation in plaintiff’s petition, as shown by defendant’s bill of exception No. 2, to said charge.” The following proposition is submitted under this assignment: “Where the cause of action alleged was failure to perform a contract to transmit and deliver a telegram to plaintiff at a specified town, it is error to submit the issue to the jury as a basis for recovery of the failure of the defendant to deliver the telegram to the plaintiff elsewhere, and the telegraph company is under no obligation to make delivery at any place other than as contracted.” The charge states an incorrect proposition of law as applied to the pleadings in the case, for no contract was pleaded to the effect that defendant bound itself, to deliver the message to Will Fabian at Gaf-ford’s. Plaintiff pleaded that defendant company agreed to transmit and deliver the message to him at Cottonwood; that in order to do so it would be necessary to telephone the message from Cross Plains to Cottonwood. Had defendant complied with this agreement with due diligence, and informed the telephone operator at Cottonwood that plaintiff was supposed to be at Gafford’s the message would undoubtedly have reached him on the afternoon of June 20th. Cottonwood had no established defined'limits, and in general parlance a man living three-quarters of a mile from the stores and post office, and having telephone connection with the local exchange, would undoubtedly be said to live at Cottonwood. Western Union Tel. Co. v. Wilson, 152 S. W. 1169. The effect of the special charge on the jury could have1 been no more than- to inform them that, if plaintiff could have been reached at Gafford’s, the defendant should have done so. The court had virtually given the same instruction in his general charge, because he assumed that plaintiff left Cottonwood on the evening of June 20th. The evidence is undisputed that he left the stores in the afternoon, one witness stating the time at 2:30 o’clock, while plaintiff testified it was at 4 o’clock. If the court had meant this departure, he would not have submitted any issue as to liability, for the undisputed evidence showed that the telegram had not been received by the defendant company at that time. He must have meant the time when plaintiff left Gafford’s, namely, about sundown. As the legal effect of the two charges as applied to the undisputed evidence was the same, and the special charge could not have been prejudicial on the issue whether the message by due diligence could have been transmitted to Cottonwood before plaintiff left Gafford’s, we conclude the judgment should not be reversed on account of the giving of the special charge. The judgment is affirmed. 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