
    WESTERN UNION TELEGRAPH CO. v. SAXON.
    (Court of Civil Appeals of Texas. Austin.
    May 31, 1911.
    Rehearing Denied July 1, 1911.)
    1. Appeal and Error (§ 719) — 'Questions Review able — Assignment op Errors — Fundamental Error.
    The court on appeal must, in the absence of any assignment of error, examine the record to ascertain if the trial court could have lawfully rendered any judgment for plaintiff, and will reverse the judgment for fundamental error apparent on the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982.; Dec. Dig. § 719.]
    2. Pleading (§ 34) — Petition — Consteugtion.
    A petition not demurred to will be given every reasonable'intendment in its favor.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.]
    3. TELEGRAPHS AND TELEPHONES (§ 65) — ER-eoe in Transmission op Messages — Petition— Sufficiency.
    A petition, in an action against a telegraph company, for erroneously transmitting a message, which alleges that the company is engaged in the business of sending and delivering messages for hire, that the sender sent a message to the sendee, paying therefor, that the copy of the message delivered to the sendee was not a correct copy of the message filed with the company by the sender, shows, when liberally construed, as it must be, in the absence of. any demurrer, that the sender delivered the message to the company’s agent, and that the company undertook to transmit the same to the .sendee, and that it breached the agreement, and states a cause of action.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.]
    4. Telegraphs and Telephones (§ 66)— Transmission op Messages — Contracts.
    , The filing of a message with an agent of a telegraph company engaged in the business of sending and delivering messages for hire, and the prepayment of the charges thereon, followed by an attempt by the company to transmit the message, show prima facie a contract by the company to correctly transmit the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. §. 66.]
    Appeal from Fayette County Court; Geo. Willrich, Judge.
    Action by J. P. Saxon against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee’s brother sent him a telegram from Trinidad, Tex., to the effect that he was dangerously sick, and to come at once. This telegram, when received by appellee, was dated Trinidad, Colo. Appellee did not know where his brother was, but did not think he was in Colorado, and so informed the operator at La Grange, where said telegram was received, and requested him to repeat said telegram. Said operator informed him that he had done so, and that the telegram was correctly dated at Trinidad, Colo... .Appellee sent.a telegram-directed-.to; his brother at Trinidad, Colo.,- but received . no answer. He did not know that there was, such a' .place as Trinidad, Tex., until after. his brother was dead and buried. I-Iad .the telegram shown that it was ‘from Trinidad, Tex., he could, and he alleged and testified that he would, have gone to his brother and ■ reached him before he died. Judgment for _ appellee for $950.
    Hume &. Hume, for appellant.
    John T. Duncan, for appellee'.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   JENKINS, J.

(after stating the. facts as above). The appellant did not file any. assignment of errors, but asks us to reverse this case for fundamental error, in that, as it contends, the petition does not allege any contract with appellant to transmit said telegram. If appellant’s contention is correct, the, judgment should be reversed for fundamental error apparent upon the record. There can be no valid judgment without a suit. There- can be no suit in the county or dis-' trict court without a written petition. A petition which does not state any cause of, action is, in law, no petition. It is our duty, ■ without.any assignment of error, to examined the record sufficiently to see if the court could have lawfully rendered any judgment for the plaintiff.

In the absence of a demurrer, a petition will be given every reasonable intendment in its favor. Tested by this rule, we think the petition is sufficient to sustain the judgment.

The petition contains no direct averment of a contract on the part of appellant to transmit said telegram. But it is alleged in said’petition that the defendant at the time .was a telegraph company, engaged in' the 'business of sending and delivering messages for hire within the state of Texa's and elsewhere; that it had- an office at La Grange, Tex.; that on January 20, 1910,- : plaintiff’s brother resided at Trinidad, Tex.; . that his said brother wired a telegram to plaintiff, dated at Trinidad, Tex. That ap- . pellant’s agent at Trinidad, Tex., who sent said telegram, knew that it was dated at Trinidad, Tex.; that his brother prepaid said-, telegram; that a copy of said telegram was ■ delivered to plaintiff by defendant’s agent. at La Grange, Tex., but was dated Trinidad, Colo., instead of Trinidad, Tex.; that at plaintiff’s request defendant’s agent at La ■ Grange had said telegram repeated, and that he informed plaintiff that said telegram was received by defendant at Houston in the form in which it was delivered to plaintiff; . that the copy of the telegram delivered to plaintiff was not a true copy of the telegram . that was filed with the defendant at Trini- , dad, Tex. Under the liberal construction required in the absence of a demurrer, we ■ think these averments reasonably show that appellee’s brother delivered a telegram to defendant’s agent at Trinidad, Tex., and that appellant undertook to transmit the same to La Grange, Tex., and that appellant breached said contract.

Piling a telegram with the agent of a telegraph company, and prepaying the charges on the same, and the attempt of the company to transmit such telegram, makes a prima facie case of a contract on the part of the telegraph company to correctly transmit such telegram. These facts reasonably appear from the petition in this case.

Por the reasons above set out, the judgment herein is affirmed.

Affirmed.  