
    WESTERN UNION TELEGRAPH CO. v. NORDYKE, County Judge, et al.
    
    (No. 2902.)
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 9, 1927.
    Rehearing Denied Dec. 1, 1927. Petition Writ of Error Dismissed for Want of Jurisdiction. April 11, 1928.
    Petition for
    1. Telegraphs and telephones <&wkey;37(l) — Telegraph company must use ordinary care to transmit and deliver messages.
    Telegraph company is required to use ordinary care to transmit and deliver messages received by it.
    2. Telegraphs and telephones &wkey;>54( I)_ — Telegraph company may not contract against its own negligence relative to transmission and delivery of intrastate messages.
    Telegraph company must exercise ordinary care to transmit and- deliver intrastate messages, and may not contract against its own negligence in performance of such duty.
    3. Telegraphs and telephones <&wkey;6l — Agreement of sender of intrastate message that telegraph company might mail message to addressee, for want of specific address, held not to relieve telegraph company from liability for negligent failure to deliver telegram.
    Mere fact that sender of intrastate telegraphic message agreed with telegraph company that it could mail the message to the addressee, on account of sender’s inability to furnish specific address other than post office box, held not to relieve telegraph company from liability for negligence in failing to make any effort to find the addressee or deliver message to her, where addressee lived in city to which telegram was sent.
    4. Mandamus <&wkey;l72 — Order granting’ plaintiff new trial after recovery of $100 verdict was not disturbed in mandamus proceedings where testimony was not disclosed (Rev. St. 1925, art. 2235).
    In action against telegraph company for negligent failure to deliver intrastate telegram, in which jury returned verdict for plaintiff for $100, court, where testimony was not disclosed, was not justified in holding in mandamus proceedings that trial court abused its discretion in granting plaintiff new trial, in view of Rev. St. 1925, art. 2235, permitting new trial where damages are too small or too large.
    Appeal from District Court, Lubbock County ; Clark M. Mullican, Judge. •
    Petition by the Western Union Telegraph Company for writ of mandamus to be directed to Charles Nordyke, County Judge, and others. From a judgment refusing the writ, relator appeals.
    Affirmed.
    Wilson & Randal and J. I. Kilpatrick, all of Lubbock, and Wm. H, Flippen and John ■ W. Miller, both of Dallas, for appellant.
    Bean & Klett, of Lubbock, for appellees.
    
      
      writ of error dismissed.
    
   JACKSON, J.

The relator, the Western Union Telegraph Company on May 23, 1927, filed a petition for mandamus in the district court of Lubbock, county, Tex., complaining of the respondents, Charles Nordyke, county judge of said county and Mr. and Mrs. J. A. Freeland, husband and wife.

The record discloses that on January 3, 1927, Mrs. J. A. Freeland, joined by her husband, J. A. Freeland, instituted a suit in the county court of Lubbock county, Tex., of which county Charles Nordyke is county judge, to recover $1,000 damages for the alleged negligence of the Western Union Telegraph Company, for its failure to transmit and deliver to Mrs. J. A. Freeland the following telegram:

“Dallas, Texas, 10:30 a. m.
“October 31, 1926.
“Mrs. J. A. Freeland, Box 102, Lubbock, Texas.
“W. L. Waggoner died this morning at nine o’clock. Estelle Waggoner.”

The petition filed in the county court alleges that the message was received by the tete-graph company at Dallas, Tex., and the usual charges paid for its transmission to and delivery to Mrs. J. A. Freeland at Lubbock, Tex.; that she and her husband resided at the corner of Avenue S and Twenty-Seventh street in the town of Lubbock, and that they were well and widely known in said town, and could have been found and the message delivered by the exercise of ordinary care. The petition sufficiently sets up a cause of action against the telegraph company for its failure to exercise ordinary care in the transmission and delivery of the message.

' The Western Union Telegraph Company answered by general demurrer and general denial and specially pleaded that on Sunday, October 31, 1926, at the time the message was delivered to it at Dallas, Tex.,' a request was made for a better address than the box number, and the sender was advised that, unless a better address was furnished, it would have to mail the message in the post office, and requested that it be furnished the telephone number or street number of the addressee in the message; that the sender failed' to furnish any better address and stated to the company that the post office box was the only address she knew, and that the message would have to be mailed; that the telegraph company only contracted to transmit said message to Lubbock, Tex., and mail the same to the addressee; that the message was .promptly transmitted and received at its office in Lubbock, Tex., at 10:32 a. m. October 31st, and promptly mailed in the post office in an envelope plainly addressed to Mrs. J. A. Freeland, box 102, and duly stamped, and the company thereby complied with its contract and the delay in’ receiving the message was not due to any fault or negligence of the telegraph company, but to tbe failure of Mrs. J. A. Freeland to get ber mail, or of tbe post office employees to place tbe telegram in plaintiffs’ box, and to tbe negligence of tbe sender Estelle Waggoner in failing to furnish it with a better address, and alleged tbe negligence of tbe addressee and sender of tbe message as a bar to any recovery.

On tbe Stb day of April, 1927, tbe case was tried before a jury in tbe county court of Lubbock county, and in response to' special issues submitted, tbe jury found, in effect, that tbe relator and tbe sender of tbe message at tbe time it was received for transmission, agreed that tbe message should be mailed at Lubbock, Tex., if tbe address of Mrs. J. A. Freeland was given as post office box 102, Lubbock, Tex.; that tbe relator, upon tbe receipt of tbe message at Lubbock, Tex., promptly mailed tbe message in tbe post office in a properly stamped envelope, addressed to Mrs. J. A. Freeland, box 102; that the relator did not use ordinary care, to deliver the death message to Mrs. Freeland, and that tbe damage sustained was tbe sum of $100.

That on tbe 9th day of April, 1927, tbe relator filed its motion for judgment on the verdict of tbe jury, and on tbe same date, Mr. and Mrs. Freeland filed their motion requesting that the verdict of the jury be set aside and that they be granted a new trial; that on the 12th of May, 1927, Charles Nordyke,-tbe county judge of said county, refused tbe motion of relator for judgment, and granted a new trial.

On these facts, the relator, tbe telegraph company, bases its right to tbe issuance of a writ of mandamus by tbe district court of Lubbock county, Tex., to compel the county judge of said county to enter judgment on the verdict of tbe jury that tbe Freelands take nothing against it. In tbe mandamus proceedings tbe respondents answered by general demurrer and general denial, and on trial before tbe district court the writ of mandamus was refused, from which action of the district court, tbe relator prosecutes this appeal.

The relator assigns as error tbe action of the district court in refusing to issue a writ of mandamus in its behalf, compelling tbe county judge of Lubbock county, Tex., to enter a judgment in its favor on the verdict of tbe jury in county court, because tbe record shows that tbe county judge bad and exercised no discretion in setting aside tbe verdict of the jury in granting a new trial, but acted arbitrarily and without authority of law. Tbe contention of tbe relator is, in effect, that as it requested from tbe sender of tbe message a more definite address of tbe addressee than tbe post office box number, and not having been furnished with such address it contracted to transmit the message to Lubbock and there mail it to the addressee, properly stamped and addressed, and the jury having found that it complied with such contract, no further duty was imposed upon it, and tbe district court should have issued a writ of mandamus, directing the county judge to enter a judgment in its favor.

A telegraph company is required to use ordinary care to transmit and deliver messages received by it. Western Union Tel. Co. v. True, 101 Tex. 236,106 S. W. 315; Western Union Tel. Co. v. Holcomb (Tex. Com. App.) 210 S. W. 509.

This was an intrastate message and the duty of exercising ordinary care to transmit and deliver tbe message was imposed upon the relator by law, and against tbe performance of this duty it could not contract, because a telegraph company is not permitted to contract against its own negligence. Western Union Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58; Western Union Tel. Co. v. Piper (Tex. Civ. App.) 191 S. W. 817, and authorities cited. Tbe relator made no effort to find tbe addressee and deliver tbe message, but contented itself with mailing tbe message on its receipt at Lubbock, in tbe post office, properly stamped and properly addressed to tbe addressee. There is no statement of facts showing what testimony was introduced at tbe trial in county court, but tbe jury found that the relator was guilty of negligence, which finding is not attacked. There is nothing in the record to indicate' that tbe sender of tbe message was guilty of contributory negligence in failing to furnish a more definite address at which tbe addressee could be found. In fact, tbe relator alleges that tbe sender informed relator’s clerk at Dallas, at the time tbe message was received for transmission that the post office box was tbe only address she knew.

In our opinion, the telegraph company was not entitled to a judgment by showing that the sender agreed that it could mail the message to the addressee at Lubbock, because tbe sender could not furnish any more specific address, in view of the finding of the jury that the telegraph company was guilty of negligence in failing to deliver the message, and in view of the fact that the addressee lived in the city of Lubbock, and no effort was made by tbe company, other than to mail the message, to find the addressee or deliver tbe telegram to ber. Klopf v. Western Union Tel. Co., 100 Tex. 540, 101 S. W. 1072, 10 L. R. A. (N. S.) 408, 123 Am. St. Rep. 831; Western Union Tel. Co. v. Mitchell, 91 Tex. 454, 44 S. W. 274, 40 L. R. A. 209, 66 Am. St. Rep. 906; Western Union Tel. Co. v. Carver (Tex. Civ. App.) 222 S. W. 333; Western Union Tel. Co. v. Cook, 45 Tex. Civ. App. 87, 99 S. W. 1131; Western Union Tel. Co. v. Hendricks, 26 Tex. Civ. App. 366, 63 S. W. 341; Western Union Tel. Co. v. Bowen (Tex. Civ. App.) 76 S. W. 613; Western Union.Tel. Co. v. Hice et al. (Tex. Com. App.) 288 S. W. 175.

Article 2235, Revised Civil Statutes 1925, provides:

“New trials may be granted when the damages are manifestly too small or too large.”

The verdict of the jury in the case in county court was for the sum of $100. As heretofore stated, we are not advised what the testimony disclosed on the trial of the case in county court, and we are not warranted, under the facts and circumstances revealed by the record, in holding that the county judge abused the discretion given to him in the above statute, in setting aside the verdict of the jury.

Finding no error in the record, the judgment is affirmed. 
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