105 S.W. 1165 | Tex. App. | 1907
Appellee sued appellant to recover damages for failure to promptly deliver a telegram conveying to her the news of the death of her son whereby she was prevented from attending his funeral. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $1,800. This is a second appeal. 93 S.W. Rep., 199. We find that appellant was guilty of negligence in failing to promptly deliver the following message:
"Sour Lake, Nov. 11, 1903. "Mrs. M. E. Ayres, "Bay City, Texas. "Frank breathed his last at 1 o'clock. "W. E. Ayres."
The message was delivered to appellant in Sour Lake about 1:30 o'clock p.m. on November 11, 1903. The operator to whom it was delivered knew that deceased was the son of appellee. The message was not delivered to appellee in Bay City until between 10 and 11 o'clock a. m. November 12, 1903. Had the telegram been promptly delivered appellee could and would have attended the funeral of her son, but was prevented from attending the funeral by the negligence of appellant. Appellee lived in Bay City, outside the delivery limits prescribed by the rules of appellant, under which circumstances appellant was entitled to receive an additional amount. It was not demanded at the time the message was sent, but on the afternoon of November 11, an additional fee was demanded from and paid by the sender of the message.
The first assignment of error complains of the refusal of the court to charge the jury that appellant was not liable for its failure to deliver the telegram beyond the half-mile limit established by appellant, and the second assignment complains of the charge of the court to the effect that appellant was bound to use ordinary diligence to deliver the message whether appellee "lived inside or *559
outside of the defendant's free delivery limits in the town of Bay City." The third assignment is that the court erred in not instructing a verdict for appellant, so only one question is presented by the brief and that is, Was it the duty of appellant to use reasonable diligence to deliver the message, whether the person to whom it was addressed lived within the half-mile limit in Bay City or not? That question has been answered directly in the affirmative. Western Union Tel. Co. v. Teague, 8 Texas Civ. App. 444[
In the Teague case it was said: "Whether the college was in the free delivery limits or not, it was the duty of appellant to use reasonable diligence to deliver the message. The regulation, as we interpret the contract, does not affect the question of promptness of delivery, nor does it excuse a failure to deliver; but the only question to be raised under it seems to be, whether the message shall be delivered without extra charge. The company undertook to deliver the message and collect the extra rate of fifteen cents for delivery beyond the free limits afterwards, and it seems to have been, in fact, paid by appellee." The same conditions prevail in this case. Appellant received the message and transmitted it to Bay City, kept it over two hours and then demanded an extra amount which was paid by the sender.
The judgment of the Court of Civil Appeals in the Swearingen case was reversed by the Supreme Court (
If the contention of appellant should be sustained, a person might live twenty feet, or even less, outside the free delivery limits and the telegraph company could absolutely refuse to deliver an important message on that account and yet incur no liability whatever for its refusal, even though a prompt demand for extra pay from the sender would have secured it, and the message could have been delivered in time to have allowed the person addressed to have responded to the obvious demands of the telegram. This court will not for a moment entertain such a proposition, but on the other hand is disposed to hold that appellant should have attempted to deliver the message and at least have given appellee a chance to refuse the payment of the extra charge. It did not do this, but held the message for more than two hours, and then when the extra charge *560 was paid by the sender did not deliver the message for fifteen hours or more. The evidence of the messenger boy shows that he made very little inquiry about where appellee lived and must have reported that she lived outside of the town, for he stated that is what he was told, and the demand for extra pay must have been made on that report. He was contradicted as to being told that appellee lived outside the town.
There was no provision in the contract on the back of the message, that required prepayment of the extra charge to insure delivery beyond the free delivery limits, and it has been held in Indiana that such a requirement would be unreasonable. Western Union Tel. Co. v. Moore, 39 N.W. Rep., 874. Not only was such a provision held unreasonable, but the Indiana court fully sustains our construction of the language of the contract in regard to an extra charge. The court said: "Counsel insist that under the contract and rule either payment in advance or a satisfactory guaranty was required. A careful reading of both the contract and the rule fails to disclose any such requirement. So far as we are able to discover, it is not so nominated in the bond. The contract says that for delivery beyond the free delivery limits (which are not specified) a special charge will be made to cover such delivery. There is nothing here to indicate that security will be demanded therefor, or payment in advance."
In the case of Anderson v. W. U. Tel. Co.,
Affirmed.
Writ of error refused.
