
    MIDGETT et al. v. WESTERN UNION TELEGRAPH CO.
    (No. 8754.)
    
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1926.
    Rehearing Denied Eeb. 11, 1926.)
    Appeal and error <§=31201 (6)— On new trial of action for nondelivery of telegram, it was error to strike out plaintiff’s amended petition showing telegram was prepaid, instead of collect.
    On new trial, after remand of action for nondelivery of telegram, it was error to strike out plaintiff’s amended petition showing, that telegram was prepaid instead of collect, as* alleged in original petition, as the amended petition set up substantially the same cause of action.
    Appeal from District Court, Harris County; W. E. Monteith, Judge.
    Suit by Mrs. Susie Midgett and husband against the Western Union Telegraph Company. From a judgment for defendant on a directed verdict, plaintiffs appeal.
    Reversed and remanded.
    See, also, 251 S. W. 253.
    Charles Murphy and W. C. Perry, both of Houston, for appellants.
    E. Chas. Hume, Jr., Baker, Potts, Parker & Garwood, Palmer Hutcheson, and Homer B. Bruce, all of Houston, for appellee.
    
      
      writ of error dismissed for want of Jurisdiction April 1, 1926.
    
   . LANE, J.

This suit was brought by Mrs. Susie Midgett and her husband, D. D. Mid-gett, against the Western Union Telegraph Company, to recover the sum of $2,000 actual damage alleged to have been suffered by them because of the failure of the telegraph company to deliver to Mrs. Midgett a telegram, advising her of the death of her father, and for $950 exemplary damages.

Charles S. Scallorn, the father of Mrs. Mid-gett, died at his home, about 5 miles from the city of Cuero, in De Witt county, Tex.; about the hour of 1 o’clock p. m. on the 19th day of May, 1921. About 3 p. m. of the same day, the relatives of Mrs. Midgett delivered to the agent of the telegraph company, for transmission to Mrs. Midgett at her home address, to wit, “Route A, Box 154B, Houston, Tex.,” which was about 2 or 3 miles from the Houston office of the telegraph company, the following telegram:

“Cuero, Texas, May 12, 1921.
“Mrs. Susie Midgett, Route A, Box 154B, Houston, Texas. Tour father is dead come at once. < J. A. Newman.”

This telegram was transmitted to Houston, and there received by the agent of the telegraph company at about 9 p. m. on the day it was delivered for transmission, but was not delivered to Mrs. Midgett, and she did not hear of the death of her father until after the interment of his body, which took place about 4 p. m. on the day after the message was delivered to the Cuero agent, and, as a consequence, she did not go to attend the funeral, which the plaintiffs allege she could and would have done, had the message been delivered at any time before 8 a. m. on the 20th day of May, the day after said telegram had been transmitted.

The plaintiffs .alleged in their original petition the delivery and transmission of the message, the nondelivery of the same, etc., and alleged that the telegraph company accepted the message for transmission and delivery to Mrs. Midgett at her place of residence, C. O. D.; that is, that defendant agreed to transmit the message and deliver the same to Mrs. Midgett and collect its charges from her for such transmission and delivery, when such delivery was made to her at the address given in the message, the payment of said charge being guaranteed by the sender. Other allegations sufficient to support a recovery, if proven, were made.

Upon trial, the only witness who testified as to that part of the contract relative to the manner of payment of the charges for the transmission and delivery of the message was J. A. Newman, who delivered the message to the Cuero agent. He testified that, on the day Charles Scallorn died, he was requested by Scallorn’s daughter to send a telegram to Mrs. Midgett, advising her that her father was dead; that he delivered the message, hereinbefore shown, to the agent of the telegraph company at Cuero, Tex.; that said message was delivered to said agent about 7 or 8 p. m. May 18, 1921; and that he paid the charge for the transmission of the telegram.

Judgment was rendered for the plaintiffs, and, from that judgment, the telegraph company appealed.

The record on appeal was transferred from the Court of Civil Appeals at Galveston to the Beaumont court, and that court reversed the judgment and rendered judgment for appellant, the telegraph company, but, on motion for rehearing, it set aside the judgment first rendered by it, and reversed the judgment of the trial court, and remanded the cause. In reversing and remanding the cause on motion for rehearing, the Beaumont court said:

“We have again given this matter careful consideration, but cannot escape the conclusion that our construction of the pleading was correct. We therefore must adhere to our order that the judgment be reversed. We have also concluded, however, that we should not render judgment for appellant, but that the cause should be remanded for another trial. As suggested by the motion, it is reasonably clear that the trial court proceeded upon a mis- ) conception of the appellees’ petition, and treated it as one not based upon a special contract for delivery of the message beyond appellant’s free delivery limits. The case having been tried upon an incorrect interpretation of the pleadings, the cause ought to be demanded, unless we are able to say that the record shows with reasonable certainty that appellees will not be able to establish by proof the cause of action made by their pleading, and we cannot so say. Eor these reasons, our former order that the judgment be rendered ih favor of appellant is here now set aside, and it is now ordered that the judgment be reversed and the cause remanded.”

On the 13th day of November, 1923, after the remand of the cause, the plaintiffs, by permission of the court, filed their first amended petition, and therein and thereby repeated its allegations as in their original petition, except in such amended petition they alleged that, upon delivery of the message at Cuero, the charges of the telegraph company for the transmission and delivery thereof to Mrs. Midgett at her place of residence, shown in the message, were paid to said agent of the company at Cuero, and that, in consideration of such payment, said agent agreed to so deliver the message to Mrs. Midgett.

Thereafter, on the 15th day of February, 1924, defendant filed its motion to strike out plaintiffs’ amended petition upon the grounds that the Court of Civil Appeals had remanded the cause only that the plaintiffs might, if they could, prove their cause of action, as made by their original petition, that the proof should be limited to the cause of action as made by plaintiffs’ original petition, and that plaintiffs should not be permitted to modify their pleading; that as a matter of fact plaintiffs were not only seeking by their amended pleading to modify their cause of action, but were thereby seeking to set up a different cause of action from that set up by their original petition, neither of which they could do, by reason of the terms of the remand of the appellate court. The court sustained said motion, and the plaintiffs excepted.

The cause was continued until October, 1924, at which time plaintiffs again insisted on the right to have their amended petition filed, and again the court upon the motion of defendant refused to permit it to be filed, and plaintiffs again excepted.

The plaintiffs, being forced to trial upon their original petition, made proof of the delivery of the message to the Cuero agent of the defendant, the transmission thereof to Houston, the agreement of said agent to deliver said message to Mrs. Midgett, at her address, as given in the same, and that the charges for such transmission and agreed delivery had been paid to said agent by Newman, who delivered the message to him.

After the evidence was closed, the court instructed the jury selected to try the cause to return a verdict for defendant. The jury returned their verdict as directed, and judgment was rendered accordingly. Appellants complain of the action of the court in striking out their amended petition and in instructing a verdict for the appellee.

Appellee, replying to appellants’ complaint, insists that there was no error in the action of the court in striking out appellants amended petition, in that, by the terms of the judgment of the Court of Civil Appeals, in reversing and remanding the cause, appellants were confined, upon another trial, to proof of the allegations made in their original petition, and should not be permitted to amend their petition, and allege that the charges for the transmission and delivery of the telegram was paid by Newman, who delivered it to the Cuero agent, in lieu, of the allegation in the original petition that such charges were guaranteed and were to be paid, when and where the message was by agreement to be delivered to Mrs. Midgett.

Appellee also insists that the court did not err in his said action, in that by their amended petition appellants sought to declare upon another and different cause of action from that set up in their original petition, and that this they could not do under the terms of the judgment by which the cause was remanded.

We think the trial court properly permitted appellants to file their amended petition, and that it erred in striking the same out on motion of appellee.

The cause of action declared upon in the amended petition was substantially the same as that declared upon in the original petition. The only difference in the two was as to how and when the charges for the services of the telegraph company were, by the contract for such services, paid or to be paid. The real substance of the allegation of both of the petitions, which constituted the liability of appellee, if any, was the failure to deliver the message at all.

Having reached the conclusion above expressed, it becomes our duty to reverse the judgment and remand the cause, and it is so ordered.

Reversed and remanded. 
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     