
    WESTERN UNION TELEGRAPH CO. v. CATES.
    (Supreme Court of Texas.
    June 19, 1912.)
    1. Appeal and Error (§ 1094) — Review-Intermediate Courts.
    In an action against a telegraph company for failure to deliver a message, where the Court of Civil Appeals found as a fact that there was negligence on the part of the company, the Supreme Court cannot review such finding, if from the record it cannot determine as a matter of law that there was no evidence of negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094.]
    2. Telegraphs and Telephones (§ 66)— Operation — Actions—Evidence.
    In an action against a telegraph company for failing to deliver a message, evidence held sufficient to warrant a finding of negligence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    3. Telegraphs and Telephones (§ 66)— Operation — Negligence — Burden oe Pro op.
    In an action against a telegraph company for negligent failure to promptly transmit a message, while the burden of proof is on the plaintiff to establish negligence, yet, where the exact time of the filing of the message for transmission was important, testimony for plaintiff as to such time, though indefinite, will be construed in her favor, where it appears that, though it was within the power of the defendant to show the exact time, it did not do so.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Mrs. Elizabeth Cates against the Western Union Telegraph Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (132 S. W. 92), and defendant brings error.
    Affirmed.
    Praetor, Vandenberge, Crain & Lewright, of Victoria, Geo. H. Fearons, of New York City, and N. L. Undsley, of Dallas, for plaintiff in error. Price & Green, of Yoakum, and Davidson & Bailey, of Cuero, for defendant in error.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DIBRELL, J.

This suit was brought by the plaintiff below, Mrs. Elizabeth Catos, against the Western Union Telegraph Company, to recover damages resulting from the failure to properly transmit and deliver a death message to her father, whose presence at the funeral and burial of her husband she greatly desired. The circumstances, as alleged and shown by the evidence, were that plaintiff and her husband had been only shortly married and moved from Cuero, Tex., to Batesville, Ark., where they had resided for less than two months and were strangers there, having no friend or relations at that place. Her father was the Rev. R. A. Rowland, who at that time resided at Cuero, Tex. On the 9th day' of February, 1908, the husband of plaintiff was taken seriously ill at their residence in Batesville, Ark., and she telegraphed her father on that day to Cuero, Tex., as follows: “Joe very sick, doctor much concerned. [Signed] Lizzie.” This telegram was duly received. A number of other telegrams were sent by plaintiff to her father at Cuero, Tex., by the context of which the relationship of the parties and the purpose of the message were fully disclosed. On the 13th of February plaintiff sent to her father through her agent the telegram reading: “Come at once; doctors give up all hope.” And in response to this message plaintiff’s father left Cuero for Batesville on the night of February 13th, going by way of Houston. After plaintiff’s father had left Cuero for Batesville, and on February 14th, plaintiff sent to him at Cuero a message reading: “Joe dying; don’t come.” This message, however, was not received by her father, as he had left Cuero before it was delivered, and hence he was not aware of the arrangements contemplated by plaintiff with regard to the burial of her husband. Plaintiff’s father before leaving Cuero on February 13th, for Batesville, Ark., telegraphed plaintiff that he was leaving for that point and instructing her to telegraph him the following morning at Houston. Plaintiff, after sending the message to her father on the 13th of February, expected him to leave Cuero at once to come to her, as he had promised to do in the event she ever needed him in sickness or death, and after the message was sent asking him to come to her at once, plaintiff, on February 14th, sent to her mother, Mrs. R. A. Rowland, a message saying: “Leave tonight for "VVaco, funeral there Sunday, meet me there. If Papa has started for Batesville stop him by wire.”

Plaintiff’s father, upon reaching Houston, having on account of a delayed train missed connection, went to the office of defendant and inquired whether a message had been received there for him from Batesville, Ark., telling defendant’s agent who he was and explaining to him that he was expecting a death message from his daughter at Bates-ville, Ark. The train on which the Reverend Mr. Rowland was to depart for Batesville was due to leave Houston at 4:40 o’clock in the afternoon, the regular time, and he made inquiry at the office of defendant at least three times during the day for any message that might have been received by defendant for him, and finally a short time before the train was due to leave, which was 5 o’clock p. m. on account of a little delay, he went to defendant’s office, made inquiry for the message, and told the agent that it was a life and death case with him, and notified such agent that if the message came at any time before 5 o’clock that he could be found in the waiting room at the depot of the International & Great Northern Railroad Company in the city of Houston and to deliver such message there. At this time plaintiff’s father arranged with defendant’s agent to transmit -or forward to him the message to Palestine if received in time to do so, but, if not received in time to reach him there, then to send it to him in care of the conductor of that train, assuring the agent that he would not leave that train en route to Batesville, for which he agreed to pay defendant for forwarding such message, to which defendant’s -agent fully agreed.

The message which plaintiff’s father was expecting, and which forms the basis of this suit, is as follows: “Batesville, Ark., February 14th. Rev. R. A. Rowland, Houston, Texas. Am leaving for Waco tonight, funeral Sunday, meet me there. Lizzie.” It was not shown at what time this message reached Houston; but it was not delivered to Mr. Rowland until about February 18th, and after he had returned from his trip to Bates-ville. The message was delivered to defendant at Batesville between 3 and 4 o’clock p. m. February 14th, for transmission to plaintiff’s father at Houston, Tex., a distance of about 500 miles, with request that it be promptly sent and delivered. At the time and before the message was deposited with defendant for transmission, the person making such delivery explained to defendant’s agent all the circumstances, the purpose and importance of the message. By reason of the fact of the nondelivery of said message, plaintiff’s father went on to Batesville, Ark., and plaintiff with the body of her husband went to Waco, Tex., where the. body was buried on the afternoon of February 16th, and plaintiff’s father did not reach Waco until about 9 o’clock on the evening of that day and after the burial. He was not able to learn at Batesville to what point the body had been shipped, but thought it had gone to Oklahoma until he reached Texarkana on his way back to Texas. Plaintiff was a stranger at Waco, having only once met any of the relatives of her husband, and was there among strangers at the funeral and burial of her husband, and sustained all the'damages alleged in her petition.

The defendant presented a general demurrer, certain special exceptions to the sufficiency of plaintiff’s petition, and a general denial. The cause was tried before the court without a jury, and judgment for $1,000 was rendered for plaintiff against defendant. The cause was by the Court of Civil Appeals affirmed. 132 S. W. 92.

The writ of error in this case was granted for the purpose of examining the question as to whether the telegraph company would be bound by an agreement by the sendee of a telegram with an agent of the company before the telegram had been deposited with the company for transmission to forward such telegram to the sendee at -a point named, and in case such agreement is binding to determine whether it became a new contract-for the benefit alone of the sendee, or whether it formed a part of the original contract for the benefit of the sender. The question is one not free from difficulty and importance.

It was also thought, at the time the writ was granted, that the evidence failed to show negligence on the part of defendant in getting the message to Houston. Upon a careful examination of the record, we find that we are not able to say there is no evidence in the record of defendant’s negligence in failing to get the message declared on to Houston. Since the Court of Civil Appeals has found as a fact there was negligence on the part of defendant in failing to get the message to Houston in time to have delivered it to plaintiff’s father before he left on the 5 o’clock train for Batesville, Ark., we have no jurisdiction to question or review such finding if there is any evidence of negligence in the record. From a most careful consideration of the facts produced as set forth in the record, we cannot say, as matter of law, there is not any evidence of negligence on the company’s part in failing to get the message to Houston in time to have delivered it to plaintiff’s father. This being true, it follows that, unless the record discloses some other error assigned for which a reversal should be had, it would be incumbent upon this court to affirm the judgment of the Court of Civil Appeals and to forego a discussion of the main question upon which the writ of error was granted for the purpose of examination. To a disposition of the case the question affecting the validity of the agreement made by the sendee of the message with defendant’s agent to forward it to the sendee is not essential, for if the defendant was guilty of negligence in failing to deliver the message to plaintiff’s father before he left Houston on the afternoon of February 14th, and there is no other error for which the judgment should be reversed, there is no necessity for discussing the question mentioned, and we will not do so.

In holding that there is some evidence in the record from which we think the court could reasonably conclude that defendant was negligent in failing to promptly transmit and deliver the message to the sendee, who did everything within his power to aid and encourage its prompt delivery, it is proper' to state some of the facts and circumstances connected with the case upon which we base our conclusion. There is no room for doubt that defendant was, from both the contents of the several messages themselves and from what was told its agent by the sender of the messages, fully aware that plaintiff was the daughter of the Reverend R. A. Rowland, to whom the message was sent, and that she was anxious to have him with her at the funeral and burial of her husband, who had died at Batesville, and whose body she was taking to Waco, Tex., for interment. The defendant knew that “Joe” was the husband of plaintiff and that “Lizzie” was Joe’s wife. The importance of an expeditious transmission and delivery of tire message was emphasized and impressed upon defendant by the former messages from the daughter to the father and from the father to the daughter, manifesting the deepest solicitude and the tenderest sympathy. They began by the announcement of the serious illness of plaintiff’s husband, followed by a statement of the fear of the attendant physician, the loss of their hope of recovery, a plea for comfort, and finally that the end had been reached, and a continued plea for personal consolation. This was sufficient to draw from defendant an effort to use some care and caution in forwarding with reasonable dispatch the message declared on; but we find that, notwithstanding the urgency of the message delivered for transmission at Batesville between 3 and 4 o’clock in the afternoon to be sent to Houston, Tex., it did not reach its destination until the following day. There might have been some good reason for this delay, or why the message did not reach Houston in time to have been delivered to plaintiff’s father before he left that city at 5 o’clock p. m. for Batesville, Ark.; but such valid excuse, if it existed, was known only to defendant and was not disclosed upon the trial of the ease.

It was shown that a't least two telegrams were sent and delivered on each of the days of the 13th and 14th of February, and we consider this some evidence that it was within the power of defendant, in the absence of some intervening ‘cause, to have transmitted and delivered the message in question before the sendee left Houston. This is made reasonably certain when taken in connection with the common knowledge of the speediness of the electric current. There intervened between the time the message was filed for transmission and the time when the sen-dee left Houston about one hour and a half —sufficient time, without intervening causes of relays and busy wires not shown to have existed, to have belted the earth. If the message was not filed at Batesville at the time claimed by plaintiff, it ivas, as suggested by Judge Fly, within the power of the defendant to have shown the contrary. While the burden of proof was upon the plaintiff to •establish negligence, yet, where the exact time of the filing of the message for transmission was important, the testimony of the plaintiff as to such time, though somewhat indefinite, will be construed most favorably to her statement, when it appears that it was within the power of defendant to show the precise time of such filing, and it failed to do so. Pullman Palace Oar Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 625.

Both the trial court and the Court of Civil Appeals have found that defendant was negligent in failing to transmit and deliver the message declared on to plaintiff’s father at Houston before he left for Batesville on the afternoon of February 14th, and finding in the record facts and circumstances unexplained and undenied, relating to the receipt, the transmission, and nondelivery of the message in question, and believing all the other questions presented have been properly disposed of by the Court of Civil Appeals, we think the judgment of that court should be affirmed, and it is, accordingly, so ordered.  