Appellees brought this suit in the court below against appellant to recover damages for alleged delay in transmitting a telegraphic message. The trial before a jury resulted in a verdict and judgment in favor of appellee Mrs. Dona Rowe for the sum of $800.
Appellant's first and third assignments of error complain of the action of the court below in overruling its general demurrer to appellees' petition, and its special exception thereto, which assailed it upon the ground that said petition failed to allege any contract with appellant to transmit and deliver the message in question. We think the appellees' petition alleged facts sufficient to show a contract made on the part of appellant to transmit and deliver the message, which is all that is necessary, it not being required that the pleader should state the conclusion that a contract had been made or entered into. (Stuart v. Western U. Tel. Co., 66 Tex. 580 [66 Tex. 580]; Loper v. Western U. Tel. Co., 70 Tex. 689.)
We think the allegation that at the date the alleged damages accrued, appellee Dona Rowe was a feme sole, was sufficient to show that such damages were her separate property. Hence we overrule appellant's second assignment of error.
The contention urged in appellant's fifth assignment of error was not embraced in its special exception upon which this assignment is predicated, and an exception to a petition can not be aided by the testimony developed upon the trial.
Appellant's fourth assignment of error is overruled. It was not necessary *Page 86 for appellees to plead the evidence by which they intended to support the allegation in their petition to the effect that had appellant duly transmitted and delivered the telegram, appellee Dona Rowe could and would have left Iowa Park on the afternoon of October 21, and have arrived in Sulphur Springs on the afternoon of October 22, 1904, at one o'clock, in time to have attended the funeral services of her brother.
The court did not err in giving to the jury the fifth and sixth paragraphs of its charge, as same were authorized by the pleadings and evidence; and the court in another paragraph of its charge properly instructed the jury as to appellant's rights under its rules as to office hours.
The seventh paragraph of the court's charge complained of in appellant's eighth assignment of error, was properly given to the jury in view of the evidence in this case; especially that of appellee Dona Rowe to the effect that as soon as she received the message and found she could not get a train that day in time to reach Sulphur Springs in time for the funeral, she immediately called her brother Wayland McBride, who had charge of the funeral, over the telephone, and requested him to postpone the burial to such time that she could attend, and he answered that he could not hold him out any longer, that the burial would take place on the afternoon of 22d October, 1904, which testimony was corroborated by Wayland McBride.
The court below was warranted in giving to the jury the eighth paragraph of its charge, and in refusing to give to it appellant's special instruction number 9, in view of the requested special charges numbers 3 and 8 of appellant, which were refused by the court but the substance of which was embraced in said paragraph 8 of the court's main charge, and said requested charge number 9 was inconsistent with appellant's requested special charge number 8. (Western U. Tel. Co. v. Bryson, 61 S.W. Rep., 548; International G. N. R. R. Co. v. Crook, 56 S.W. Rep., 1005; International G. N. R. R. Co. v. Sein, 89 Tex. 67; Missouri, K. T. Ry. Co. v. Ferris, 23 Texas Civ. App. 218[23 Tex. Civ. App. 218].) While it is true that appellees did not allege in their petition that appellant agreed to transmit or deliver the message outside of its regular office hours, appellant, as a defense to appellees' cause of action, pleaded its regular office hours, and alleged that the message was received outside of same, and introduced testimony in support of such allegations, and in rebuttal of such testimony appellees, without objection on the part of appellant, introduced evidence of an agreement by appellant's agent when he received the message to rush it. We think this testimony justified the charge complained of; especially in connection with the fact that appellant requested the special charges above mentioned.
Appellant's twelfth and sixteenth assignments of error complain of the refusal of the court below to give to the jury its requested special instructions numbers 3 and 8. As above stated, these instructions were substantially embraced in paragraph 8 of the court's main charge. There was no testimony authorizing appellant's special charge number 5, hence its refusal was not error; and, besides, the court properly instructed the jury on the subject to which said special charge related in its main charge. *Page 87
The matter embraced in the seventh special charge requested by appellant would constitute no defense to appellees' cause of action, as the telegrams referred to in said special charge had nothing whatever to do with the telegram, the basis of this suit, or the conduct of appellee Dona Rowe in reference thereto.
Appellant's other assignments of error relate to the admission of certain testimony by the court below over its objections. We are not required to consider these assignments of error as the bills of exception taken to the action of the court in the respects stated were not presented to and approved by the trial court within ten days after final trial. (Sayles' Rev. Stats., art. 1193; San Antonio A. P. Ry. v. Holden, 23 Texas Civ. App. 146[23 Tex. Civ. App. 146].) However, we do not think that appellant points out any reversible error in the action of the court complained of under these assignments.
The judgment of the court below is affirmed.
Affirmed.
Writ of error refused.