Western Union Telegraph Co. v. Morgan

In its answer to appellee's suit appellant alleged that —

"The telegraph messages upon which this suit is based constituted and was a joint contract, and not joint and several, between the sender thereof, Mrs. T. J. Barrett, and this defendant, and but one and only one recovery of damages for breach thereof can legally be had; and that the sender of said messages, Mrs. T. J. Barrett, by suit in this court — a court of competent jurisdiction — against this defendant recovered a final judgment against this defendant for $500 and all cost of suit, which judgment * * * this defendant has paid in full. Defendant says the question of the liability of this defendant, and to whom liable, for breach of said contract evidenced by said messages was by said suit and proceedings fully and finally adjudicated, and defendant cannot be legally held to any other or further liability. Wherefore defendant now here pleads the proceedings and judgment in said suit of Mrs. T. J. Barrett v. Western Union Telegraph Company as res judicata in bar of any recovery of plaintiff in this suit."

It will be noted that the allegation was that appellee's suit was on —

"a joint contract, and not joint and several, between the sender of the message, Mrs. T. J. Barrett, and this defendant."

What the pleader meant to say, no doubt, was that if a liability on appellant's part under the contract arose in favor of both appellee and his mother, the liability was to them jointly and not severally. Giving that meaning to the plea, we are of the opinion, nevertheless, that the assignment predicated on the action of the trial court in sustaining appellee's exception thereto should be overruled. The liability of appellant to appellee and his mother was to them severally and not jointly. Appellee had no interest whatever in any sum his mother was entitled to recover of appellant, and his mother had no interest whatever in any sum he was entitled to recover of it. Beckwith v. Talbot,95 U.S. 289, 24 L.Ed. 496; Telegraph Co. v. Morrow, 208 S.W. 689; 9 Cyc. 704; and see Hale v. McKenzie, 198 S.W. 1004.

It appeared without dispute in the testimony that appellee knew as early as Thursday before the Saturday when his sister died that she was ill and "in a dangerous condition." It further so appeared that appellee then could have left San Antonio for Mt. Vernon, and that had he done so he would have reached the latter place on Friday. Appellant insists that it therefore appeared as a matter of law that appellee —

"was guilty of contributory negligence in failing so to do, and that his own negligence, and not its negligence, was the proximate cause of his failure to see his sister before her death and to attend her funeral."

The contention will be overruled. Proof that appellee on Thursday knew his sister was critically ill and did not go to her, considered in connection with the other circumstances of the case, might have warranted, but certainly did not demand as a matter of law, a finding that he was guilty of negligence. His mother having written as appellee's mother did, we think a reasonably prudent person, situated as the testimony showed appellee was, might very well have delayed going to his sister in the expectation that if her condition did not improve or become more threatening his mother would, as appellee's mother endeavored to, promptly advise him of the fact by wire. Telegraph Co. v. Drake,14 Tex. Civ. App. 601, 38 S.W. 632; Telegraph Co. v. Lydon, 82 Tex. 364,18 S.W. 701. But if we thought otherwise the contention still would be overruled, in view of the testimony of appellee that he could and would have left San Antonio on Saturday had the message first sent on that day been promptly delivered to him, and that leaving that day he could and would have reached Mt. Vernon in time to have accompanied his sister's remains to Omaha. If he could and would have done that, and did not because of appellant's negligence in failing to promptly deliver said telegram, then it seems to us if he was negligent in not going to his sister on Thursday or Friday, his negligence should not be, and appellant's said negligence should be, held to be the proximate cause of his failure to be present at his sister's funeral. Telegraph Co. v. Reynolds, 140 S.W. 121; Mitchell v. Telegraph Co., 12 Tex. Civ. App. 262,33 S.W. 1016; 2 Joyce on Electric Law, § 738a.

The judgment is affirmed.