
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. PAYNE.
    (No. 2098.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 4, 1919.
    Rehearing Denied April 17, 1919.)
    1. Telegraphs and Telephones <§=>45 — Failure to Furnish Telephone Service.
    Defendant telephone company held not liable for its alleged negligent failure to locate plaintiff so that he might be informed of his child’s illness, where it did not agree to attempt such service.
    2. Telegraphs and Telephones <§=>45 — Telephone Service — Failure to Locate Person.
    A telephone company is not liable for failure to perform its agreement to locate a person to whom it was desired to telephone, unless its agreement was founded on a consideration.
    Appeal from District Court, Hunt County; Win. Pierson, Judge.
    Action by L. M. Payne against the South-; western Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    The appeal is from a judgment in appel-lee’s favor for $1,250, the amount a jury found he was entitled to recover of appellant because of negligence on its part in failing to notify him at Haskell, where he was temporarily, of a telephone call for him from Campbell, where his wife and children were, advising him of the serious illness of one of his children. In his petition, after alleging that appellant was a corporation engaged in the transmission of telephone messages for hire, appellee alleged that on September 8, 1915, he was near Anson, but about 7 or 8 o’clock of the morning of that day left that place for Haskell, where he arrived about 9 o’clock of the same morning. He further alleged:
    That his wife and family were then at their home in Campbell, and that at about 10 o’clock of that morning, acting by and through Rev. B. F. Harris, “put in a call for plaintiff at the residence of Rev. G. W. Guinn, near An-son, Tex., and at the same time advised the agent of the defendant at Campbell, Tex., who received said call, that the infant child of this plaíiítiff and his wife was seriously sick and was not expected to live, and that plaintiff’s wife wanted to get in communication with him for the purpose of advising him of said serious sickness of their said child; that the said G. W. Guinn informed the defendant, its agents and servants, that the plaintiff had left his home that morning, and was then in the town of Haskell, whereupon the said Rev. B. F. Harris requested that the defendant locate the said plaintiff in the town of Haskell so that he could convey to him said message and information, and at the same time instructed the agent
    at Campbell, Tex., to have, a search made for plaintiff at the various hotels, banks, and livery stables in the town of Haskell, and w,as willing and ready to pay the toll and expense'thereof, whereupon it became the duty of defendant, its agents and servants, to make said search, and, if possible, to locate the plaintiff and notify him of said call.”
    Appellee then alleged:
    That “if the defendant, its agents and servants, had made the slightest efforts to locate him in the town of Haskell, they could have done so on September 8, 1915, or on the morning of September 9th, * * * but they negligently failed and refused to make any efforts to discover his whereabouts so as to get him to the phone so as to put the said B. F. Harris in communication with him.”
    Appellee then alleged:
    That, if defendant’s agent had used due diligence, “he would have received said message on September 8, 1915, and could and would have arrived at his home on the following day to comfort and assist his wife during the said serious ill of their infant child, but the plaintiffs says he knew nothing of said call until the following Saturday night, September 11, 1915.”
    He then alleged as follows:
    “That on account of the negligence of defendant, its agents and servants, in failing' to notify him of said telephone call, plaintiff’s wife was caused to suffer great and excruciating pain and mental worry and anguish and distress of mind and uneasiness on account of the fact that their said baby was seriously sick and was expected to die, and she was unable to get any message to her husband, the plaintiff heroin, so that he could come home and be a comfort and help to her during these trying hours for a period of three or four days, she all the time expecting said baby to die and being advised by her physicians that it could not live; that she was thereby rendered extremely nervous and caused to lose sleep, and was finally confined to her bed by nervous prostration on account of the absence of her husband and on account of the fact that she could get to him no communication as to the serious condition of their said baby. And plaintiff avers that by reason of the premises he has been damaged in the sum of $2,500 on account of the physical and mental pain and worry and distress of mind endured by his wife.”
    C. M. Means, S. P. English, and John E. Frank, all of Dallas, for apipellant.
    Evans & Shields, of Greenville, and Mahaffey, Keeney & Dalby, of Texarkana, for appellee.
   WILLSON, O. J.

(after stating the facts as above). In its brief appellant insists that a cause of action against it was not stated in appellee’s petition, in that it was not therein alleged that appellant “undertook or agreed or became bound to transmit or deliver the call made the basis of the suit,” •and in that it was not therein alleged “that there was a payment or offer to pay for services rendered or to be rendered, or a readiness and willingness to pay therefor.”

It seems to he settled law in this state that a petition in which such allegations or their equivalent is omitted is subject to a general demurrer, and therefore cannot be the basis of a judgment in the complainant’s favor. Telegraph Co. v. Henry, 87 Tex. 165, 27 S. W. 63; Lewis & Renfro v. Tel. & Tel. Co., 59 S. W. 303; Tel. Co. v. Smith, 133 S. W. 1062; Tel. Co. v. Twaddell, 47 Tex. Civ. App. 51, 103 S. W. 1120.

In the Lewis & Renfro Case the allegations were that one Weeks, plaintiff’s attorney at Palo Pinto, notified the defendant’s agent at that place “that he desired to converse with plaintiff Renfro at Jacksonville, and requested said agent to at once call up Jacksonville and get said Renfro to the telephone so that 'Weeks could consult with him,” etc., and that defendant’s agent at Jacksonville received the call and negligently failed to notify Renfro thereof. The court said:

“We think the petition fails to state a cause of action, and the trial court did not err in sustaining the general demurrer. There is no allegation that appellee undertook or agreed to serve appellants in any capacity, or to do any act or thing for failure to perform which ap-pellee .would be liable, and, if any such undertaking can be inferred from any of the allegations of said petition, it was a contract without consideration, because the petition nowhere alleges that appellants paid, or offered to pay, or were ready and willing to pay, appellee anything for the services desired of it.”

In the Smith Case the allegations were that the defendant company was “engaged in the business of receiving and sending telegrams over its wires and lines for pay”; that a telegram was “turned over” to its agent at Kingsland addressed to the plaintiff at Santa Anna; and that, instead of promptly and correctly transmitting and delivering same to the addressee, the defendant negligently incorrectly transmitted and' negligently delayed delivery of the telegram. The court said:

“We think the general demurrer should have been sustained. It will be noted that, while the petition alleges that Mrs. Albert Smith duly delivered to the defendant’s agent at Kingsland the above-mentioned telegram for transmission addressed to plaintiff at Santa Anna, Tex., yet there is no allegation that the said Mrs. Smith, or any one for her, paid defendant for its transmission and delivery, nor is it alleged that defendant bound and obligated itself to deliver said message to plaintiff, nor is there any allegation showing . that there was any contract between said parties relating to the delivery of same. Without such allegations no legal obligation was imposed upon defendant' to transmit and promptly deliver the same.”

It will be noted that, while it was alleged in appellee’s petition that his wife “was willing and ready to pay the toll and expense thereof” to have appellant make a search for appellee in Haskell and put him in communication with Harris so the latter could tell him his child was sick, it was not alleged in said petition that appellant undertook to perform such service. Therefore it must be held that, under the authorities cited, appellee’s petition was subject to a general demurrer, and hence not sufficient as a support for a judgment.

While,, as stated above, it was alleged in appellee’s petition that his wife was ready and willing to pay the expense of getting him to the telephone in Haskell so Harris could talk with him, it seems the allegation was not supported by any evidence offered at the trial. To show liability on the part of appellant to appellee it devolved on the latter to show, in addition to. an undertaking on the part of the former to perform the service in question, a consideration therefor. 1 Elliott on Contracts, § 247; Lewis & Renfro v. Tel. & Tel. Co., 59 S. W. 303.

Of the assignments in appellant’s brief presenting other questions, the third is sustained. We think it was error, over the objection appellant interposed thereto, to admit as evidence the testimony of the witness Mrs. Ben Clifton set out in the statement under that assignment. The assignments remaining undisposed of, except the ninth, in which the judgment is attacked as excessive, and as to which we will not express an opinion are overruled.

The judgment will be reversed, and the cause will be remanded for such further proceedings as may be had in the court below. 
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