Albany Telephone Co. v. Terry (60 Tex. Civ. App. 95, 1910)

SPEEB, Associate Justice.

J. B. Terrjr, as plaintiff below, filed this suit against the Albany Telephone Company and the Southwestern Telegraph & Telephone Company, seeking to recover damages for the negligent failure of those companies in respect to three certain telephone calls tendered to them about August 2, 1907, relative to the serious illness of his brother, Martin Terry, at Clarksville. The trial resulted in a verdict and judgment in plaintiff’s favor for five hundred dollars, and the defendants have appealed.

The undisputed facts, which are decisive of this appeal, show that the first call involved was put in by Mrs. Butler, a sister of appellee, at Clarksville, about five o’clock a. m., August 2d, to the Southwestern Telegraph & Telephone Company, whose line extends from Clarksville to Cisco, at which latter place the call was delivered to the Albany Telephone Company, whose line extends from Cisco to Stamford and Botan. The Albany Telephone Company received the call, and made every effort to find appellee at Stamford, to which place the call was addressed, but he was not to be found there, having departed the day before for Rotan. The Southwestern Telegraph & Telephone Company had an arrangement with the Albany Telephone Company whereby the two companies would handle calls for Stamford, but not for Rotan. Appellee in some way learned that he was wanted at Clarksville, and knowing of his brother’s illness attempted to call up Dr. Dinwiddie at that place from Rotan over the lines of these appellants. The evidence further shows that on about August 6 one W. H. LeMaster, at Clarksville, put in a call for appellee at Rotan, but such call was refused for the reason already given. Neither of the appellants offered to handle calls for the public between the stations of Clarksville and Rotan. Appellee at no time after the first call by his sister, Mrs. Butler, was at Stamford. Under these facts the trial court should have given the requested instructions for appellants. There is absolutely nothing in the facts to show that any duty was imposed by law or contract on appellants, or either of them, to afford the means of telephonic communication between appellee at Rotan and any of the other parties at Clarksville.

The judgment is therefore reversed and here rendered for appellants.

Reversed and rendered.