Citations
- 16 Tex. Civ. App. 268
Full opinion text
HUNTER,
Associate Justice.—This suit was brought by John H. Davis, appellee, on February 5, 1895, to recover from appellant company damages for mental suffering and costs of telegram, in the sum of $1804.65, resulting to him by reason of appellant’s negligence in falling to promptly deliver to him at Veal Station, Parker County, Texas, the folloAving message:
“San Antonio, Texas,. Nov. 19, 1894.
“To John H. Davis, Veal Station, Texas.
“Papa died suddenly tonight at seven thirty. Funeral Wednesday. Come. ' Eliza D. McGown.”
It was alleged that the message was sent by his sister for his benefit to enable him to attend his father’s funeral, and that the charges for special delivery by messenger were guaranteed to appellant when the message was delivered to it at San Antonio, at about 9 o’clock p. m. of November 19th, and that the urgent necessity of prompt delivery was explained to the agent who received it.
The defense was a general denial, and a special plea alleging that appellant had no line of its own from San Antonio to Veal Station; that its nearest office was at Weatherford, Texas, at which place it connected with a telephone company which had a line from Weatherford to Veal Station, over which such messages could be promptly and speedily forwarded to Veal Station; that the message was received by it after its office at Weatherford was closed on the night of November 19th, so that it was impossible to forward it to Weatherford that night, but it was transmitted and received there promptly the next morning at the opening of its said office, and by it immediately delivered to its said connecting telephone line for transmission to Veal Station, that being the speediest and only means of transmission from Weatherford to Veal Station, and that the delay, if any, occurred on the connecting line after such delivery; that the message was written on one of its regular blanks, on the back of which was printed a special contract stipulating that appellant was made the agent of the sender, without liability, to forward the message over lines of any other companies, when necessary to reach its destination; that it would not deliver messages beyond the free delivery limits of its terminal station unless extra charges were paid or guaranteed, and that Veal Station was beyond its free delivery limits at Weatherford.
Appellee replied by general denial, and specially that the contract with appellant was to transmit the message by telegraph to its station nearest to Veal Station, and thence by special messenger, and to that end the extra charge for special delivery was guaranteed to it; and that the contract printed on the back of the message referred only to connecting telegraph lines, and not telephone lines; and further, that if the legal construction of said contract authorized appellant to deliver said message to said telephone company, then the appellant was negligent in not informing the telephone company, at the time of delivering the message to it, that the special delivery charges were guaranteed by the sender.
The ease was tried by a jury, who returned a verdict for $1000 against appellant, and this appeal is based upon errors assigned to the charge of the court and to the action of the court in refusing to give special charges asked, and to the verdict of the jury as unsupported by the evidence, in that the preponderance of the evidence established that appellant’s contract was to transmit promptly the message to Weatherford, and there promptly deliver it to the, telephone company, which it did.
The evidence establishes the delivery of the message as above set out to appellant at 9:30 o’clock p. m., November 19, 1894, at San Antonio, Texas, together with two other messages addressed to sons of the deceased, one at Austin, and the other at Jacksonville, Texas. The message to Jacksonville was marked “Special delivery charges guaranteed;” but the one to appellee was not so marked, but the words “via Weatherford” were marked on the face thereof. Floyd McG-own, husband of the sender, delivered the messages to appellant’s agent at San Antonio. The evidence is conflicting as to whether the extra charges for delivery from Weather-ford by appellant by means of a special messenger were demanded by appellant or guaranteed by the sender; the testimony of Floyd McG-own being in effect that he did not know that there was a telephone line from Weatherford to Veal Station, but that he was told by the agent that special delivery charges would be required, and he then and there guaranteed them; while that of James Dargan, the agent of appellant, to whom the message was delivered, is to the effect that he told Floyd McGown that the office of destination was not a Western Union office, and that -the message would hav