Reed v. Western Union Telegraph Co.

KEY, Associate Justice. Joseph L. Reed died in El Reno, O. T., on the 28th day of August, 1901, leaving T. J. Reed, his brother, surviving him. On the same day, but prior to the death of Joseph L. Reed, one Silbaugh sent a telegram from El Reno, addressed to T. J. Reed at Waco, Texas, informing him of the sickness of his brother, and requesting him to come to' El Reno. It was signed Joseph L. Reed. This telegram was not delivered to T. J. Reed until the 7th day of September following. Soon after receiving the message referred to, T. J. Reed sent a telegraphic message, addressed to his brother Joseph L. Reed, at El Reno, inquiring about his condition, and on the next day, September 8, 1901, sent another message of similar import to Silbaugh. On September 9, 1901, not having heard anything further in reference to the condition of his brother, T. J. Reed went from his home near Waco, Texas, to El Reno, Oklahoma, where he ascertained that his brother had died on the 28th day of August, as stated above. *118 T. J. Reed brought this action against the telegraph company to recover damages, alleging that the company was guilty of negligence (1) in failing to deliver the first message within reasonable time, and (3) in failing to deliver at El Reno the two messages sent by him. There was a jury trial, which resulted in a verdict and judgment for the defendant, and the plaintiff has appealed. Among other matters, the court charged the jury as follows: “If you find that the said telegrams were sent as alleged, and that the de^ fendant exercised such care and diligence in delivering or attempting to deliver the same as a man of reasonable and ordinary care and prudence would have used under the same or similar circumstances, then, if you so find, you will find for the defendant, and so say by your verdict, and you need not consider the other matters stated herein; and in this connection you are charged that if defendant, through its employes, upon the receipt of said telegram from El Reno, searched for plaintiff and, failing to find him, then took the usual and ordinary precautions that a man of ordinary care would have taken to inform plaintiff of- said telegram, you will find for the defendant.” This instruction is complained of as constituting a charge on the weight of testimony, and the complaint is well founded. It was the duty of the telegraph company to exercise ordinary and reasonable diligence to find the plaintiff and deliver the message to him. Search may have been made at some places and not at others; and a person of ordinary prudence and care might have searched at other places. And therefore it was error for the court to assume, as it did in the charge quoted, that any character of search would acquit the company of negligence in that respect. The instruction quoted is complained of further upon the ground that it restricted the jury to a consideration of the question of negligence in the delivery of the message sent from El Reno to the plaintiff, and- excluded consideration of the negligence alleged in the failure to deliver the two messages from the plaintiff to parties in El Reno. The court instructed the jury in its second paragraph in reference to the two messages sent by the plaintiff, which instruction concludes with this sentence: “If you find that defendant exercised ordinary care and diligence at El Reno in attempting to deliver said telegrams, then you will find for the defendant.” From this it will be seen that while the plaintiff had two theories upon which he sought to recover, and while they were not necessarily dependent upon each other, yet, in submitting each issue to the jury, the court told them if they found certain facts as to the particular issue then under consideration to “find for the defendant.” This was not an accurate statement of the law, and was calculated to confuse the jury. For instance, on the issue submitted in the charge quoted above, the jury may have concluded that the preponderance of testimony was with the defendant, but that there was a similar preponderance in favor of the plaintiff on the other issue in reference to the failure to deliver *119 the two telegrams sent by the plaintiff; yet the charge quoted, in effect, told the jury that if the evidence preponderated in favor of the defendant on the issue therein submitted, to return a verdict for the defendant, regardless of the other questions in the case. If to the charge quoted had been added the phrase, “unless you find for the plaintiff under other paragraphs of this charge,” or language of similar import, the several paragraphs of the charge would have harmonized, and the jury could not have been misled. But as it was framed, there was at least apparent inconsistency in the two paragraphs submitting the two issues to the jury, and the jury may have been misled and confused thereby. When a positive error has crept into one paragraph of the court’s charge, it is not corrected by another paragraph, which states the law correctly, when the latter does not expressly refer to and modify the former. Railway v. Robinson, 73 Texas, 277 ; Baker v. Ashe, 80 Texas, 356. The assignments complaining of an instruction given by the court in response to a question asked by the jury, and the refusal of an instruction on that question requested by appellant, need not be considered, as we see no reason to suppose that the next jury will propound the same question. The questions presented by the other assignments have been considered, and our decision upon them is against appellant. For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded.