
    WESTERN UNION TELEGRAPH CO. v. MORGAN.
    (No. 2227.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 19, 1920.
    Rehearing Denied March 4, 1920.)
    1. Judgment &wkey;>609 — Judgment for sender OF TELEGBAM FOB DELAY IN DELIVERY NOT BAB TO ACTION BY ADDRESSEE.
    Mother’s recovery of damages for delay in delivery of her telegram to son, informing him of daughter’s impending death, did not preclude son from recovering damages for inability to be present at his sister’s funeral; the telegraph company’s liability to mother and son being several and not joint.
    2. Telegraphs and telephones <&wkey;73(4)— Addressee not guilty of contributory NEGLIGENCE AS A MATTER OF LAW.
    Brother suing telegraph company for negligent delay in delivery of a telegram as to sister’s impending death, preventing him from being present at her funeral, was not, as a matter of law, contributorily negligent in not leaving for his sister’s bedside without telegram, though he knew that she was critically ill.
    3. Telegraphs and telephones &wkey;>53 — Negligent DELAY IN DELIVERY PROXIMATE CAUSE OF ADDRESSEE’S DAMAGE.
    The failure of a brother, knowing sister to be critically ill, to go to her without receiving telegram that she could not live did not preclude him from recovering for negligent delay in delivery of telegram preventing his presence at the funeral; the telegraph company’s negligence, and not his negligence, being the proximate cause of his failure to be present.
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Action by Willis Morgan against the Western Union Telegraph Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    October 13, 1917, appellee’s sister, Mrs. Ruth Ellis, was dangerously ill at the home of their mother, Mrs. T. J. Barrett, in Mt. Vernon. Appellee was then a soldier training at Camp Travis, San Antonio. At 12:40 o’clock of the afternoon of said October 13 a message, as follows, was delivered to appellant at Mt. Vernon for transmission to ap-pellee at San Antonio: -
    “Willis Morgan, Camp Travis, Co. I, 359th Infantry, San Antonio, Texas. — Ruth is not expected to live unless change in condition. [Signed] Mrs. T. J. Barrett.”
    Mrs. Ellis died at 9 o’clock of the evening of said October 13. Her remains were held in Mt. Vernon until 3:30 of the afternoon of October 14, when they were shipped to Omaha, where they were buried the same afternoon. The message set out above was not delivered to appellee until several days after j the day it was sent. Had it been delivered to him as promptly as it should have been appellee could and would have left San Antonio in time to have reached Mt. Vernon before the remains of his sister left that place, and would have accompanied same to Omaha and been present at the funeral.
    At 7:30 o’clock of said afternoon of October 13 another message, as follows, was delivered to appellant at Mt. Vernon for transmission to appellee at San Antonio:
    “Willis Morgan, Camp Travis, Co. I, 359 Inf., San Antonio, Texas. — Ruth very bad; can’t live long. [Signed] Mrs. Barrett.”
    This message was delivered to appellee at 12 o’clock m. October 14, when he wired his mother to expect him, and left on the first train out of San Antonio for Mt. Vernon, reaching the latter place at about 3 o’clock of October 15. Appellee’s message to his mother did not reach Mt. Vernon until after she had left that place with her daughter’s remains for Omaha, and was not delivered to her until she returned to the former from the latter place. On the trial of appellee’s suit against appellant for damages the court found that the failure of appellant to promptly deliver the first message was due to negligence on its part which prevented appellee from being present at his sister’s funeral, and, having also found that appellee was without fault in the matter, and that he had suffered damage in the sum of $500, rendered judgment in his favor for that sum.
    Chas. S. Todd, of Texarkana, Francis R. Stark, of New York City, and W. H. Flippen, of Dallas, for appellant.
    Wilkinson & Davidson, of Mt. Vernon, for appellee.
   WILLSON, C. J.

(after stating the facts as above). 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 ap-pellee 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. Yernon, 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 dó, 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 appel-lee’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, § 73Sa.

The judgment is affirmed. 
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     