Western Union Telegraph Co. v. McDonald

JAMES, Chief Justice.

This action is based on this telegram:

“Logansport, La., Mar. 13, 1903.

“Judge J. G-. McDonald,

“via Eavasota, Anderson, Texas.

“Missed connection; postpone funeral until tomorroAv; will arrive tonight, midnight. Bush. W. L. McDonald.”

The petition alleged that at the time the message Avas delivered to defendant’s agent plaintiff informed him that the funeral the telegram referred to was that of his father; that he paid the agent for transmitting it to Eavasota, and for the telephone charges from there to Anderson where his father died; that defendant failed to transmit the message via Eavasota to Anderson as aforesaid; that if it had been promptly transmitted and delivered the burial, which took place at 3 p. m. of March 13th, could and would have been postponed until March 14th, when he could and would have been present, etc., but by reason of said failure to transmit same plaintiff was deprived of being at the funeral and burial, and of seeing his father before he was buried, by reason of which he has suffered great mental distress, etc.

The answer was a general denial; also, first, that at the time the .message was delivered at Logansport defendant’s lines and appliances were disabled, "blown down and burnt out by violent winds, rains and electrical disturbances; that part of the lines over which the message must have gone out of Logansport remained so, without fault of defendant, until after six o’clock p. m. of that day, which was as soon as defendant could restore same and transmit the message in the exercise of reasonable care and diligence.

Second. That said agent advised plaintiff that the message could not be then sent for the above reason, and requested him to withhold it and send it from some point on his route, where it might be safely and expeditiously transmitted; and when said agent received the message at Logansport he did so with the distinct understanding that it was subject to such delay as might arise from said conditions.

Third. That the message was by direction and agreement of plaintiff to be transmitted to defendant’s office at Plantersville, Texas, and from thence by telephone to Anderson, and that the telephone line from said place to Anderson, which was not in defendant’s control, was during the wdiole day of March 13th, down, and communication over it was impossible, and that if defendant had been able to transmit the message to Plantersville, that its agent there could not have possibly communicated it to Anderson on that day.

Fourth. That it was wholly impracticable for said funeral to have been postponed later than 3 p. m. of the 13th, at which time it was impossible for plaintiff to have been at Anderson.

The verdict was for plaintiff.

The' only proposition advanced by appellant in connection with its first and second assignments of error, which proposition is all we can consider, is as follows:: “The fact that the funeral of plaintiff’s father took place in his absence will not entitle the plaintiff to recover against the defendant for a delay in delivering a message to those in charge of the funeral requesting a postponement of the funeral, where those in charge knew that it was impossible for plaintiff, under any circumstances, to arrive until several hours after the time of the burial.” As there was testimony showing that the funeral could and would have been postponed, we see no force in the proposition.

In reference to the third, assignment, we conclude that when the entire charge is read and considered the error in a certain paragraph, of which appellant complains, does not exist.

The fourth and fifth assignments are overruled for the reason that we find testimony showing that defendant’s wires were disabled by certain electric-light wires having fallen across them. The proposition, asserting the -contrary of this, is not well founded.

The sixth, seventh and eighth assignments are overruled, for we find there was evidence which fairly and amply supports the verdict. Affirmed.

Affirmed.

Writ of error refused.