133 S.W. 1062 | Tex. App. | 1911
This suit was brought by ap-pellee against appellant to recover damages alleged to have been sustained by him by reason of its failure to promptly transmit and deliver to him a message announcing the serious illness of his brother, by reason of which he was prevented from visiting him during his last illness. There was a jury trial, resulting in a verdict and judgment in behalf of appellee,, from which this appeal is taken. Defendant interposed a general demurrer, several special exceptions, pleaded the general issue, and specially answered, undertaking, for a number of reasons, to excuse its failure, etc., to deliver said telegram ; and now insists by its first assignment .that the case should be reversed because the court erred in overruling its general demurrer to plaintiff’s petition, on the ground, as set forth in its proposition, that said petition failed to allege that defendant ever contracted or agreed to transmit or deliver the message sued on, and that the same fails to allege such facts as show a promise, duty, or obligation on the part of the defendant to transmit or deliver said message.
, In order to properly present the question raised, we will, omitting formal parts, set out plaintiff’s petition to which said demurrer is addressed. Said petition alleges: “That heretofore, to wit, on and about the 24th day of October, 1908, and a long time prior thereto and since said date, the defendant was engaged in the business of receiving and sending telegrams over its wires and lines for pay in this state and in said county of Coleman, Tex., and on said date aforesaid Mrs. Albert Smith in person or at her instance had turned over to the defendant’s agent at Kingsland, Tex., a telegram, in words and substance as follows: ‘Kings-land, Texas, 10-24^-1908 to N. H. Smith, Santa Anna, Texas. Albert not expected to live. Come at once. Mrs. Albert Smith J 4:42 p. m.’ That said above-mentioned telegram was by Mrs. Albert Smith, or at her instance, duly delivered to the defendant’s agent at Kingsland, Tex., and addressed to this plaintiff at Santa Anna, Tex., for the purpose of informing him that his brother Albert Smith was then in a dangerous condition, and was not expected to live, and was to give his brother, the plaintiff herein, an opportunity to go to the bedside of his brother while alive and during his last sickness, and the Mrs. Albert Smith mentioned in said telegram was the wife of said Albert Smith and the sister-in-law' of said plaintiff, and said telegram on its face showed the importance of prompt delivery thereof, and of the serious sickness of the said Albert Smith, and the agent at Kingsland, Tex., was so informed of said facts, and at said time knew the condition of the said Albert Smith. That said defendant, its agents, employes, and representatives, instead of promptly and correctly transmitting the said message aforesaid from Kingsland, Tex., to Santa Anna. Tex., and instead of correctly receiving said message at Santa Anna, Tex., and promptly
We think the general demurrer should have been sustained. It will be noted that, while the petition alleges that Mrs. Albert Smith duly delivered to the defendant’s agent at Kingsland the above-mentioned telegram for transmission addressed to plaintiff at Santa Anna, Tex., yet there is no, allegation that the said Mrs. Smith, or any one for her, paid defendant for its transmission and delivery, nor is it alleged that defendant bound and obligated itself to deliver said message to plaintiff, nor is there any allegation showing that there was any contract between said parties relating to the delivery of same. Without such allegations no legal obligation was imposed upon defendant to transmit and promptly deliver the same. In the case of Western Union Telegraph Co. v. Henry, 87 Tex. 165, 27 S. W. 63, Chief Justice Gaines, delivering the opinion of the court, in a case where the allegations of the petition were very similar to those under consideration, said: “Besides, the cause of action which is attempted to be set out in the petition, is for the breach of a contract, or at least for the failure to perform a duty growing out of a contract. Does the petition
In Lewis v. S. W. Tel. & Tel. Co., 59 S. W. 303, it was held, as stated in the syllabus, that “a petition in an action against a telephone company for failure to notify plaintiffs that a certain party wished to talk with them, which contains no allegation that defendant undertook or agreed to serve plaintiffs in any capacity, or that plaintiffs paid, offered to pay, or were ready and willing to pay, defendant for the desired services,” fails to state a cause of action. Believing that the petition is insufficient, for the reasons above announced, the assignment will be sustained.
It is further urged that the petition is insufficient in failing to allege that, if said telegram had been promptly delivered, plaintiff could and would have reached his brother prior to his death, citing in support of this contention Telephone Co. v. Brown, 104 Tenn, 56, 55 S. W. 155, and W. U. Tel. Co. v. Bell, 42 Tex. Civ. App. 462, 92 S. W. 1036. In cases like the present it is necessary, not only to prove that the plaintiff could, but also that he would, have immediately responded to the telegram, if the same had been promptly delivered, in time to have been present before the death or burial, as the case might be, in order to recover. If it is necessary to make this proof, we think it is likewise necessary to make the allegation, for without it the proof, if offered, would not sustain the judgment.
Appellant by its second assignment complains of that part of the charge of the court wherein it told the jury-that the defendant owed the duty of exercising due care in the transmission of the message, and due diligence in the delivery thereof, asserting that defendant was only required to use ordinary care in the transmission and delivery of said message, and that the charge as given imposed a higher and different degree of diligence than that required by law. While we think it would have been better to have used the expression “ordinary care,” defining the same in the language of our decisions, still it has frequently been held by the courts that the words “due care” and “due diligence” and “ordinary care” are convertible terms and mean the same thing. See 29 Cyc. 427, § 2, and 3 Words and Phrases, p. 2222, and 6 Words’and Phrases, p. 5035.
The remaining assignments have been duly considered, but are regarded as not well taken and are overruled; but for the reasons stated, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.