| Tex. App. | Apr 26, 1911
Under appellant's first assignment of error, it denies liability for the reason that no notice of appellee's claim for damages was filed with appellant within 90 days after said message was filed. It is true that no such notice was given, but we hold that the failure to give such notice is not a bar to appellee's right to recover herein for the reasons:
1. The requirement that such notice shall be given is not valid under our statute, unless the same is reasonable. Article 3379, R.S. The reasonableness of such notice is a question of fact for the jury, under the circumstances of the particular case. Railway Co. v. Newton, 127 S.W. 876. But in this case the court instructed the jury that such notice was reasonable, which was more favorable to appellant than it was entitled to.
2. In this connection the court instructed the jury that the obligation to give such *1171
notice within 90 days from the filing of the message was binding on appellee, unless he was ignorant of such stipulation; and, furthermore, that such ignorance would not excuse him, unless he was prevented by appellant from ascertaining such fact. The evidence is sufficient to sustain a finding that appellee was prevented by the fraudulent acts of appellant's agents from ascertaining the terms of the contract as evidenced by the matter printed on said message. Telegraph Co. v. Sanders, 26 S.W. 734; Tel. Co. v. Timmons,
3. Appellee never agreed to said stipulations. Ater, as the agent of the sender of said telegram, simply authorized the sending of the message. He did not authorize the agent at Gatesville to sign the name of J. M. Timmons to a message written on one of appellant's blanks. J. M. Timmons knew nothing of the custom of appellant in this regard, nor of such stipulations on its messages.
Appellant's second assignment is to the effect that the court erred in not granting a new trial for the reason that the undisputed evidence showed that appellee lived four miles from Rule, and that it was not paid or offered anything to defray the expenses of delivering said message outside of the town of Rule. This is true. It made no demand for such pay. But this need not be considered. The court at the request of appellant instructed the jury on this issue as follows: "If you believe that such damage, if any, was caused by the failure to incur any extra expense to send a messenger with said message to the plaintiff, several miles in the country, and beyond such free delivery limits of the town of Rule, then you will return a verdict in favor of the defendant telegraph company, because the undisputed evidence shows that such extra expense was not paid or promised to be paid by the plaintiff's agents who sent the message." The evidence is sufficient to sustain a finding that said message was never in fact mailed to appellee, notwithstanding the fact that appellant's agent at Rule testified that he mailed the same. Appellee lived only four miles in the country on a rural route, and had a mail box in which his mail was delivered daily. He testified that he never received said message; that he was at his mail box on the 25th, 26th, and 27th; that he was at appellant's office in Rule on April 27th, and saw appellant's agent, with whom he was acquainted, and that said agent did not mention the telegram; that, after learning from his sister's letter that such telegram had been sent, he inquired of appellant's agent at Rule concerning the same, and that said agent did not say that he did mail the same, but only that he thought he mailed it; that thereupon he inquired of the postmaster at Rule and of the mail carrier, and that each of them stated that he had no recollection of having seen such telegram.
Finding no error in the record, and the evidence being sufficient to sustain the verdict of the jury, the judgment herein is affirmed.
Affirmed.