41 S.W. 367 | Tex. App. | 1897
This is an action to recover damages for a failure to promptly transmit and deliver a telegraphic message notifying *548 appellee of the dangerous illness of his brother, Tom Johnson. Appellee's petition charged appellant with negligence both in the transmission and delivery of the message, and the court submitted both issues to the jury. The verdict is general for the plaintiff, and does not show whether the jury found one or both charges of negligence to be true. There is testimony, however, tending to sustain both, and in accordance with such testimony, and in support of the verdict, we find that appellant was guilty of negligence as charged; that appellee's brother, Tom Johnson, died the same day the message was sent, and was buried about 3 o'clock p.m. on the following day; that if appellant had exercised reasonable care and diligence in the transmission and delivery of the message it would have been received by appellee in time for him to and he would have gone from his home in Hillsboro, Texas, to Upshur County, Texas, where his brother died and was buried, before he was buried; that, because of such negligence on the part of appellant, appellee was prevented from attending the burial of his brother; and that $400, the amount of damages allowed him by the verdict, is not excessive.
This disposes of all the assignments that complain of the verdict.
Appellee's petition was filed February 20, 1896. The citation that was issued and served on appellant bore the same date, but it stated that the petition was filed March 20, 1896. Appellant moved to quash the citation on account of this discrepancy in dates, which motion was overruled, and, as we think, correctly so. As the citation was issued and served a month prior to March 20, 1896, and as the petition was filed February 20, 1896, it is obvious that a clerical error was committed and the word March written where February was intended.
As a prerequisite to appellee's right to recover, the court instructed the jury that they must find from a preponderance of the testimony that appellant was guilty of negligence as charged, and that such negligence prevented appellee from attending the burial of his brother. Therefore, it was not positive error, in the absence of a special request, not to submit to the jury whether or not, had the message been promptly transmitted and delivered, appellee would have gone at once to attend the funeral of his brother, because the charge given necessarily included a finding that he would. If, although the message had been delivered in time for him to have done so, he would not have gone to his brother's funeral, then of course the failure to deliver it within a given time did not prevent his going, and the charge required appellant's negligence to have that effect in order for appellee to recover. The charge was correct as far as it went, was not misleading, and if appellant desired it to be more elaborate or specific, a special charge covering the supposed defects should have been asked.
The most direct route by railroad from Hillsboro to Upshur County was over the Cotton Belt road, whose passenger trains left Hillsboro at 7:30 o'clock a.m. and 2 o'clock p.m. The telegram in question was not delivered to appellee until 4:20 p.m., and he started on the 7:30 train next morning, but did not arrive until after his brother was buried. There *549 was some testimony tending to show that there were two other routes, not so direct, but by which, if trains on different roads made schedule time, appellee might have reached Upshur County in time to attend the funeral. On that phase of the case the court instructed the jury as follows:
"You are further instructed, that if you believe from the evidence that the plaintiff himself failed to exercise that care or diligence to reach the place of the burial of his brother, after the receipt of the message, which a person of ordinary prudence would have done with the knowledge in his possession, and that such failure on his part prevented his reaching the place of burial before the body of his deceased brother was interred, then you will find for defendant."
Having given this instruction it was not error to refuse the special charges on the same subject asked by appellant; especially as the requested charges did not submit to the jury whether or not appellee was guilty of negligence in not going another route, but in effect told the jury that he was guilty of negligence if by traveling another route he could have reached his destination before his brother was buried.
Although the sender of the message to appellee may have known that appellee was coming on the next day, and though he, the sender, could have postponed the funeral until appellee arrived, still, his failure to do so was not chargeable to appellee and did not relieve appellant from liability for its negligence, and the court properly refused an instruction requested by appellant to the effect that such failure to postpone the funeral by the sender of the message would have that effect.
Appellant's first special charge, which the trial court declined to give, contained two paragraphs. The first paragraph contained positive error, because it was a comment on the weight of testimony. The second was properly refused, if for no other reason, because it was on the same paper and so connected with the first paragraph as that the jury could not take the latter with them without also taking the former. If appellant desired the court to rule on the two propositions of law separately, it should have embodied them in separate and distinct charges, so that one could have been given to the jury and taken by them to their room, and the other refused and withheld from their inspection.
Having considered all the assignments and found no reversible error, the judgment is affirmed.
Affirmed. *550
