93 S.W. 710 | Tex. App. | 1906
This is a suit for damages arising from the failure to deliver a message from Dorrance Co., of Houston, Texas, to appellee at Caldwell, Texas. The suit arose in a Justice's Court and was appealed to the County Court. In each of the courts a judgment was rendered for appellee for $125.
The message sent by Dorrance Co. to appellee was as follows: "Limits good to-day, acsent abroach basis landed." None of the message was cipher except the two words "ascent abroach" and the message as interpreted meant 'limits good to-day, 10 1/2 cents basis landed for 100 bales landed at Houston." The message was received at Houston at 2:08 o'clock p. m., September 26, 1904, and was delivered to appellee about 9 o'clock a. m. on September 27, 1904. The message was sent to appellee to authorize him to buy 100 bales of cotton at a cost of 10 1/2 cents a pound and he was entitled to any profit that might arise by his being able to buy the cotton for a less price. He would have realized a profit of $125 had the message been delivered to him on the afternoon of September 26.
The first complaint is that the court erred in allowing appellee to give an interpretation of the message. It was admitted by the operators at Galveston that they knew that the message was important, and it would not matter whether they knew the meaning of the words or not the telegraph company would be liable. It follows that the interpretation of the message could not have injured appellant. The first words of the message were intelligible to any one who handled messages for persons dealing in cotton, as the servants of appellant were doing every day for Dorrance Co. They sent messages daily to appellee, and the operators must have known that the message was important because the limit was confined to the day on which the message was sent. However that may be, the operators at the Galveston office, to which the message was sent by the Houston office, knew the importance of the message, and they either got that information from the Houston office, or the language of the message gave the information. They knew it.
The evidence of Dorrance was that his firm agreed through the telegram that they would pay appellee 101/2 cents a pound for 100 bales of cotton and it was not necessary to prove that they were solvent and would have paid for the cotton. They had been in the habit of dealing with appellee, and the presumption would prevail that they would have paid for the 100 bales. The cotton was refused by Dorrance Co., because when tendered on September 27, the price had declined. That was the only reason given for refusing it.
The message from Dorrance Co. to appellee was delivered to appellant at Houston at 2:08 p. m. and the route to Caldwell was by Galveston, yet the message was held in Houston for one hour and ten minutes before any effort was made to send it to its destination. There is evidence that tends to show that if the message had been sent to Galveston promptly no difficulty would have been experienced in getting it to Caldwell before 3 o'clock. Farnsworth, the telegraph operator at Caldwell, testified that be first noticed that something was the matter with the line about 3 o'clock p. m. He further stated that "on said date all the instruments in said office at Caldwell were in good working order and were all modern instruments and wire number 103, which *568 got out of order that day, had been in good working order up to the time I noticed it." A wire known as "No. 9," which was in good working order, also ran into the office, and could have been used by permission of the train dispatcher. There is no proof that such permission was asked. G. A. Clark swore that several messages had been sent to Caldwell on September 26, and that the trouble after 3:25 o'clock p. m. "was atmospheric, wire swing, or grounded."
The record fails to indicate such a case of the interference of the "act of God" as would require the withdrawal of the issue from the jury. It was not proved that the wind was high, that it rained, or that there were any electrical disturbances, but simply that the wires would not work, and this court is asked to conclude from that fact that a vis major had intervened and interfered with the wires, and to reverse the judgment on that ground. The court instructed the jury that if they believed that the delay in the transmission of the message "was occasioned by natural causes arising in connection with the wires of defendant, causes for which it was not responsible and over which it had no control," they should find for defendant. The same instruction was repeated in a special charge asked by appellant and given by the court. The jury might well have found that the message could have been sent if it had been dispatched promptly from the Houston office, or if appellant's employes knew all day about the condition of the line, as some of them swore, that Dorrance Co. should have been notified. They might then have used the telephone wire which appellee used the next morning in communicating with them.
If appellant may, as it contends, limit its liability in cases where delays arise from unavoidable circumstances or for errors in cipher or obscure messages, still the jury was justified in finding that no such state of facts arose in this case. There was no error in the message, but it was simply a question of delay and the jury was justified in finding that it was not excused by the facts. The judgment is affirmed.
Affirmed.
