The correctness of the theory on which the court below tried the case — to wit, that it appeared that the only duty appellant owed appellee was to promptly transmit and deliver her message to Newell to its connecting carrier in Galveston — was not questioned there, and is not questioned here, by appellee. It was on that theory, and the *Page 1108 theory that there was no testimony that it failed to discharge the duty, that appellant requested said court to instruct the jury to return a verdict in its favor, and complains here of its refusal to do so.
We have read the testimony in the record, and agree with appellant that it did not warrant a finding that the loss appellee suffered was due to delay on its part in transmitting the message and delivering same to its connecting carrier in Galveston. The insistence of appellee to the contrary is based on the fact that the message was not transmitted to Tampico within a reasonable time after it was delivered to appellant, and testimony referred to in the statement above, showing: (1) The practice in appellant's Houston office to have been to file sent messages in a place for the purpose; (2) that appellant's employés in said office, on the day appellee delivered the message there and the two days following that day, repeatedly stated to her that the message was not on file, and could not be found in said office, and never later explained why same could not then be found; (3) that appellant's manager two days after she delivered the message to it asked to be, and was, furnished by appellee's sister over the phone a copy of the message. The argument is that the jury had a right to infer from said testimony that the delay in the transmission of the message was appellant's in delivering it to its connecting carrier in Galveston. But if such an inference from the circumstances relied on unexplained would have been warranted, we think it was not explained as those circumstances were by other testimony in the record. Documents purporting to be and identified by witnesses as (1) the message written by appellant's employé as dictated by appellee over the phone, (2) said message as received by appellant at its Galveston office and there delivered to its connecting carrier, and (3) said message as it was received at Tampico, were admitted as evidence, and are with the record sent to this office. There is nothing in the testimony suggesting the documents are not what they seem to be, nor that the annotations and indorsements thereon were not made in the usual course of the business of transmitting the message. It appears from the annotations on the one first mentioned that appellee's message was received by appellant at 1:40 a. m. September 14, and was wired to Galveston at 1:51 a. m. of that day; from an annotation on the second one of the documents that the message was delivered by appellant to its connecting carrier at Galveston at 3:20 a. m. of that day; and from annotations on the other document that the message was received at Vera Cruz at 8:30 a. m. of said day, and at Tampico at 5 p. m. September 16. Unless it is arbitrarily assumed that the documentary evidence just referred to was fabricated, the conclusion that negligence on the part of appellant in transmitting and delivering the message to its connecting carrier at Galveston was not a proximate cause of the loss appellee suffered is inescapable. There is nothing in the record indicating that a different case might be made by appellee on another trial. Therefore, reversing the judgment of the court below, judgment will be rendered here that she take nothing by her suit.
On Motion of Appellee for Rehearing. The motion will be overruled; but, after considering the record further, we have concluded that, reversing the judgment, we should have remanded the cause to the court below for a new trial, instead of rendering judgment here that appellee take nothing by be modified accordingly.