
    WESTERN UNION TELEGRAPH CO. v. WILSON.
    (No. 2519.)
    (Supreme Court of Texas.
    April 25, 1917.)
    1. TELEGRAPHS AND TELEPHONES <&wkey;66(4)— Eailube, to Deliver Message — Evidence— Supeiciency.
    In a suit for failure to make prompt delivery of telegrams sent the plaintiff, announcing the death of his mother, whereby he was prevented from attending her funeral, evidence held, to warrant a jury finding that by ordinary diligence on the part of the defendant delivery of the telegrams could have been made to plaintiff on the day received at the city of his residence, which would have enabled him to reach the place of funeral in time.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63.]
    2. Telegraphs and Telephones <&wkey;38(5)— Failure to Deliver Message — De.ee,nse.
    The fact that the plaintiff lived outside the free delivery limits established by defendant constitutes no defense if the telegraph company did not inform the sender of that fact or make demand for extra charge for delivery, since the burden of ascertaining whether the addressee is within or without a free delivery district must rest upon the company, where the addressee lives within the limits of a town or city.
    [Ed. Note — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33.]
    3.Trial <&wkey;260(10) — Failure to Deliver Message — Instructions—Measure oe Damages.
    While an instruction that the plaintiff was not entitled to recover any damages for grief occasioned by the death of his mother was proper, its refusal was not reversible error, where the court in its charge confined recoverable damages to only those occasioned by such mental anguish as was suffered by the plaintiff through the neglect of the company to make prompt delivery of the messages and his being thereby prevented from attending his mother’s funeral.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 659.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by E. L. Wilson against the Western Union Telegraph Company. From a judgment of the Court of Civil Appeals (152 S. W. 1169), affirming a judgment of the district court for the plaintiff, defendant brings error.
    Affirmed.
    N. L. Lindsley, of Dallas, and Geo. H. Fearons, of New York City, for plaintiff in error. G. W. Hardy, of Shreveport, La., and Gibson & Callaway, of Dallas, for defendant in error.
   PHILLIPS, C. J.

The suit was for the failure of the telegraph company to make prompt - delivery of two telegrams sent the plaintiff at Oil City, Louisiana, on April 19, 1911, announcing the death of his mother, whereby, it was claimed, he was prevented from attending her funeral.

Both telegrams were promptly received at the company’s office in Oil City before ten o’clock on the 19th, the same morning they were sent. They were not received by the plaintiff until the 21st, and then through the post-office at Oil City, where they were deposited by the company for mailing on the morning of that day. While there was evidence of some inquiry for the plaintiff made by the company in an effort to deliver the messages on the 19th, there was evidence on the other hand warranting a finding that by ordinary diligence on its part the delivery could have been made to him in Oil City during that day, which would have enabled him to reach the place of the funeral in time. This consisted of proof that he was in Oil City and about its business section during all of the forenoon of that day and until 1:30 in the afternoon; that it was a small place, having only about twenty four business places, and that he was generally known there.

The plaintiff at the time actually lived in what had been the old village of Caddo, the location of which was distant about a half or three-quarters of a mile from Oil City. Both places were on the same railroad line, Caddo being the older place. Upon the discovery of oil in the vicinity of Caddo, Oil City grew up, and from the evidence it seems Caddo practically moved to it. When these messages were received Caddo consisted .only of one store, a section house, and two or three other houses. Houses were scattered up and down the railroad between the two- places. According to some of the evidence there was nothing separating the two places. Caddo had neither railway station, nor post-office. Persons living there made use of the station and post-office at Oil City.

A special charge was requested'by the telegraph company to the effect that inasmuch as the telegrams were sent upon the understanding that they were not to be delivered outside of the company’s established free delivery limits in Oil City, it was not bound to make such delivery outside of those limits. The charge was refused. There was evidence that the company’s free delivery limits in Oil City were confined to a radius of a half mile from its office. The house in the old village of Caddo where the plaintiff lived was distant more than a half mile from the company’s office.

According to the proof, Oil City and Caddo were practically one place. They had substantially grown together, and Caddo could hardly be regarded as having any separate existence. The question presented, therefore, is simply whether the company was bound to make the delivery outside of its free delivery limits in Oil City.

When the messages were received for transmission at the company’s sending office it made no demand for any extra charges to cover their delivery outside of its free delivery limits at the place where they were addressed. The question is accordingly plainly ruled by Telegraph Company v. Harris, 105 Tex. 320, 148 S. W. 284. There, the telegraph company defended upon the same ground, namely, that the addressee of the message, though residing in the town of the receiving office, lived beyond the company’s free delivery limits as there established, and, hence, it was under no duty to make the delivery beyond such limits, no extra compensation therefor having been paid or guaranteed by the sender of the message. No demand for such extra compensation, however, was made by the company at the sending office. The fact that the addressee lived outside of the free delivery limits was held under such circumstances to constitute no defense. In the opinion of Mr. justice Dibrell is found this clear statement of the law upon the subject:

“We think the legal effect of permitting telegraph companies to prescribe reasonable free delivery districts beyond which they are authorized to make an extra charge for delivering messages, should and does not affect the question 'of promptness of delivery, except in those cases where a demand is made on the part of the company for the extra fee and the sender fails or refuses to pay such extra charge or guarantee its payment. The burden of ascertaining whether the addressee is within or without the free delivery district must rest upon the company, where the addressee lives within the limits of a town or city. It is not reasonable to suppose the sender of a message is familiar with the limits of the free delivery district prescribed by the telegraph company. The company forms the free delivery district and if it wishes to collect the extra tee it is incumbent upon such company to ascertain from the sender the exact location of the sendee in the place where the message is to he transmitted. If that be a burden it rests lighter upon the shoulder of the company than upon that of the sender. The district is of its creation and for its benefit, and we are not willing to say that it is incumbent upon the sender of a message to ascertain at his risk the limits of such free delivery district and tender the extra compensation, but the company must determine that fact from the information in its possession or from such information as may be given it by inquiry of the sender or from other sources, and then make demand for the extra charge. If the addressee lives without the free delivery limits and the sender refuses to pay the extra charge or guarantee its payment, then the company would be justified in refusing to make delivery of the message. ⅝ * ⅜ There being no allegation (in the plea of the company) that a demand was made by the company for the extra charge and that such extra charge being demanded the plaintiff failed to pay it or guarantee its payment, no legal defense was presented to excuse the want of a prompt delivery of the message.”

Another special charge was requested by the telegraph company, addressed to the measure of damages, which, in substance, amounted to an instruction that the plaintiff was not entitled to recover any damages for grief occasioned by the death of his mother. The charge of the court confined the recoverable damages to only those occasioned by such mental anguish as was suffered by the plaintiff' through the neglect of the company to make prompt delivery of the messages and his being thereby prevented from attending his mother’s funeral. While it would have been proper to give the requested special charge, and we regard the giving of such a charge as the better practice in cases of this character, the judgment should not be reversed because of its refusal. This court so held in Telegraph Company v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549, reviewing the opinion of the Court of Civil Appeals for the Fifth District and the dissenting opinion of Chief Justice Lightfoot upon this question, found reported in 30 S. W. 937.

The judgments of the District Court and Court of Civil Appeals are affirmed. 
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