Western Union Telegraph Co. v. Hinkle

STEPHENS, Associate Justice. This suit was brought by appellee to recover damages for mental suffering caused by the negligent failure of appellant to promptly transmit and deliver a telegram sent by W. A. Brundage, from Midlothian, to appellee, in care of Dan Butcher, at Wichita Falls. The material allegations of the petition are sustained by the proof. We therefore concur with the trial court in approving the verdict for 8500. The assignments of error will be disposed of seriatim. 1. There was no error in refusing to suppress the deposition of W. A. Brundage, on the alleged ground that the officer taking the deposition failed to write his name across the seal. The trial court found that the name was written across the seal, and an inspection of the envelope sent up with the transcript fails to show to the contrary. Besides, the bill of exceptions fails to show that any part of this particular deposition was read in evidence. 2. There was no error in refusing to charge, that the stipulation contained in the printed form upon which the message was written by appellant’s agent, at Wichita Falls, preparatory to its delivery to appellee, required notice in writing to be given of the claim for damage within sixty days before suit could be instituted. When the message was received for transmission at Midlothian, it was not written upon a printed form containing any such stipulation. Then it was that the contract was made and *520 that the compensation for the'service rendered was received. Appellant, certainly could not, with any show of reason, after it had both made and broken its contract, impose a condition not insisted upon when the contract was entered into. 3. There was no error in admitting the evidence of W. A. Brundage, over appellant’s objections, on the ground of an alleged variance. The-message delivered to appellee by appellant as the one sent by Brundage was set out in the petition, and the proof showed that only one message-had been sent. It was for the jury to determine the weight to be given-his testimony in reference to the date and verbiage of the message. They might very properly have concluded that in testifying from memory he-made a mistake of one day, and slightly varied the words but not the meaning of the message. The misdescription amounting to a variance, that is, which tends to mislead and surprise the adverse party, is a misdescription in the pleadings and not in the evidence. If the evidence tends to prove the issue, its errors and imperfections will not exclude it. The court could not say that, under all the circumstances of the case, in testifying that the message was sent on the 17th of December, the witness did not in reality have reference to the message sent on the 18th of December, the proof showing that only one message was sent. At all events, there was nothing in the manner of alleging the cause of action in this-case to operate a surprise on appellant. Bank v. Stephenson, 82 Texas, 435, and cases there cited; Thompson v. Dunn, 44 Texas, 88. 4. The verdict is well supported by the evidence, and the judgment will be affirmed. Affirmed. Delivered June 21, 1893. A motion for rehearing was refused.