As counsel for appellant question the correctness of our first, second, third, and fourth conclusions of fact, we will give the testimony upon which they are based. As to the first: J.L. Norwood, plaintiff's agent who sent the message, swore that the message copied in our conclusion is the message in exact words dictated by him to appellant's agent at Harwood; that it is just what he dictated to her; that he had never heard of any firm of I.E. Jobe Co., and did not tell appellant's operator to address the message to I.E. Jobe Co.
This message had to be transmitted via San Antonio, from there to San Marcos, and from thence to Lockhart, its destination. When the message was received at San Marcos by appellant's agent there, it was just as it is set out in our conclusion. At least appellant's operator there testified that it was; for she says: "The message was addressed to I.E. Jobe, Lockhart, Texas. I received the message just like the copy above set out [the one copied in the court's conclusion], and I forwarded it. It is and was addressed to I.E. Jobe, Lockhart. I received it by sound. That is my usual and only way of receiving a message."
On the other hand, appellant's operator at Harwood swore that she *Page 410 wrote the message just as Mr. Norwood dictated it to her, and she wrote it just as it now is (referring to a message which she identified as the original), "I.E. Jobe Co.;" and the agent at San Antonio testified that the message he received there was addressed to I.E. Jobe Co., and that he wired it to San Marcos, addressed just as he received it.
This is the substance of the testimony in relation to our first conclusion of fact, and we believe that it is reasonably sufficient to support it. There can be no question, however, about the telegram being directed to either "I.E. Jobe" or "I.E. Jobe Co.," and we concur with the district judge in his instruction to the jury, that "under the circumstances in this case, it would not matter whether it was directed to one or the other."
As to our second conclusion, which is, that "The relationship between plaintiff's wife and J.L. Lampkin, and the serious illness of the latter, were known to appellant's agent at Harwood when the telegram was delivered her for transmission." The evidence upon which we base it is as follows: J.E. Lampkin, a son of deceased, testified: "I know and then knew [referring to date of message] the manager of defendant's office at Harwood. It was Miss Dean Richardson. She knew our family, and knew the condition of my father. She knew the relations existing between John Lampkin [his father] and Mrs. Jobe. Harwood is a very small place, and people all know each other." Appellee's wife was at her father's house in July, 1891, which was during his last illness. Miss Richardson does not say that she did not know the relationship existing between the deceased and Mrs. Jobe. On direct examination her testimony was, "I did not know Mr. I.E. Jobe, nor his wife." But on cross-examination she said, "I had heard that Mr. Lampkin, the man who died at Harwood, had a daughter whose name was Mrs. Jobe, also one named Mrs. Ray, but I did not know them at the time." The very last sentence of her testimony is, "When the message was received from J.L. Norwood I knew Mrs. Jobe, plaintiff's wife, was a daughter of John Lampkin." She of her own motion wrote the note on the message: "Have asked San Antonio to use every effort to get this message through to-night to Lockhart, as Mr. Lampkin may not live until to-morrow. D." This shows she knew the importance of getting the message to Lockhart the night she received it for transmission. The voluntary interest that it manifested she felt in the matter is a circumstance to be considered in determining whether she knew of the relationship between the parties; and when it is taken in connection with the evidence quoted, and the fact that she did not deny knowledge of such relationship, we think that this court is fully warranted in its conclusion. A different conclusion on our part would, in our opinion, be an invasion of the province of the jury, who must have found as we have to have rendered the verdict for appellee. The verdict is reasonably supported by the evidence, and we conceive it our duty to sustain it. *Page 411
As to our third conclusion of fact: It is complained of because it ignores, in finding that the message arrived at Lockhart at 8:20 p.m., August 1, 1891, the fact that when it so arrived it was by reason of erroneous transmission addressed to John Lampkin. If such is a "fact," we think it should be "ignored," for in our opinion it could only be a "fact" through the negligence of appellant's agents in transmitting it, for which appellant would be responsible. Electric wires may play some strange tricks, but it does not "stand to reason" that a message properly sent from San Marcos, as appellant's agent there testifies, addressed to "I.E. Jobe," would be so changed in its transmission to Lockhart as to arrive there addressed to "John Lampkin." The jury didn't believe that, and we don't either. If appellant's agents were not guilty of negligence in transmitting the message, it was received at Lockhart addressed to I.E. Jobe; and by the exercise of reasonable care the appellant could have delivered it to appellee within a few minutes after its receipt. If on account of appellant's negligence, it was not received as a message addressed to I.E. Jobe until the next morning, the appellant is responsible for the consequences of such negligence.
As to our fourth conclusion of fact (we suppose counsel mean the fifth, for their objections relate to that, and are not germane to the fourth), we reiterate, "that by reason of the delay in delivering the message to the appellee, his wife was prevented from reaching her father's bedside until after his death;" and supplement it by now finding, from the evidence, as a conclusion of fact, "that if the message had been delivered with due diligence, appellee's wife could and would have been present at her father's bedside before his death."
Now as to our conclusions of law: It is complained of in the motion, that we erred in not sustaining appellant's third assignment of error, and in failing to reverse the case on account of the alleged error. To have sustained this assignment, we would have to overturn an unbroken line of decisions of our Supreme Court, establishing the principle that mental anguish is an element of damages deemed to be within the contemplation of a telegraph company, as a natural and probable result of its neglect to deliver with reasonable dispatch a message such as appellant undertook to transmit in this case. We do not think counsel for appellant ought to expect us to do this. Its counsel admit in their brief, that "This assignment is not well taken, so long as this court adheres to the rule permitting recovery of damages for mental anguish in cases of this character." We adhere to this rule.
The sixth ground of appellant's motion attacks the opinion of the court for its failure to sustain appellant's fifth assignment of error. As the matters to which that assignment relates are not fully set out in the opinion, we will here make a full statement of them. Appellant alleged in its answer, "That in order to provide the public with telegraphic service *Page 412 at Lockhart, it was necessary for defendant's lines and offices to be used in common with the Missouri, Kansas Texas Railway Company's road business; that said railroad company ran freight and passenger trains over its road between Lockhart and San Marcos; that on the morning of August 2, 1891, appellant's agents at Lockhart were compelled for a short time to surrender the use of said lines to the safely conducting and directing trains between said points, and to give their time to said trains on arrival, so that it was unreasonable for them to give the whole of their time to the delivery of said message; but the interest of the public and its safety in connection with trains required a portion of their time, whereby it may be, but it is not admitted, some little delay in discovering the error and delivery of said message occurred; but that defendant says that it not only used due care, but used every possible diligence in getting said message into hands of plaintiff, who, as defendant's agent at Lockhart believed, was entitled thereto."
Appellant excepted to that "portion of the answer which endeavors to excuse its delay upon the ground that the wires were surrendered to the Missouri, Kansas Texas Railway Company on the morning of August 2, 1891, upon the ground that it was not sufficient in law to excuse delay in defendant." The District Court sustained the exception, and appellant's fifth assignment of error questions the correctness of its holding.
In the Western Union Telegraph Company v. Rosentreter,80 Tex. 417, the court says: "We do not think the law contemplates that a telegraph company, charged with the duty of faithfully serving the public to all reasonable extent, shall escape responsibility for its failure to perform that duty by such a shallow pretense, after it has received the telegram and made a contract for its transmission." But in this case the answer does not even aver that it could not have reasonably discharged its duty both to the railway company and appellee. It says that appellant's agents on the morning of August 2, 1891, were compelled for a short time to surrender the use of its lines, etc. It does not even allege that the "short time" elapsed before the message was delivered that morning. But suppose that the inference should be indulged in that it did; what then is the consequence averred of its surrender for the "short time?" It is, "so that it was unreasonable for them" (the agents) "to give the whole of their time to the delivery of said message." Of course it was. But the answer fails to allege that in order to deliver the message it would have been necessary for appellant's agents to devote the whole of the time to the delivery of the message. Such an allegation could not have been truly made. A little messenger boy could have delivered it in ten minutes. But the negligence for which appellant was responsible was its failure to deliver the message on the night it arrived; and no showing of its inability to deliver it sooner next morning than it did would be a defense to such negligence. *Page 413
We deem it unnecessary to add anything to our original opinion in regard to the stipulation in the contract, to the effect that appellant should not be liable for damages if appellee failed to present his claim therefor within sixty days after sending the message. If Acts of Twenty-second Legislature, section 2, page 20, mean anything, the stipulation was absolutely void, and no notice was required as a condition precedent to suit. The stipulation being void, the action of the court in ignoring it in its charge, complained of in appellant's twentieth assignment of error, was correct.
In considering the correctness of a charge, reference must be had to the pleadings and evidence. The appellant in its answer sought to justify its failure to deliver the message with reasonable dispatch upon the ground, "that by reason of the interruption of its lines or the working thereof, in some occult manner unknown to defendant, but to which the science and business of telegraphy is inevitably subject, and without any fault of defendant, its servants, or agents, said message became changed, etc. It then introduced evidence to show that "the interruption of its lines," etc., was caused by a heavy gale, sudden atmospheric change, and lightning.
The charge of the court relating to this part of the evidence is: "If you find from the evidence that defendant received and transmitted said message with ordinary care and dispatch, or in case it did not, that delay was not occasioned for the want of the use of proper care and diligence on its part, or on the part of the agents or its employes, but was occasioned by some action of the elements or other cause over which defendant could not have control, then you will find for defendant."
It will be seen from a glance that this charge does not, as contended by appellant, "limit its defense and right to excuse by vis major, or causes over which it could not possibly have control." It excuses appellant if it used "ordinary care" in transmitting the message.
It is strenuously contended, that this court erred in not sustaining appellant's twenty-second assignment of error, and in not reversing the judgment of the District Court for error in the second paragraph of its charge, and in failing to instruct the jury as requested in its special charge number 4. The second paragraph of the charge complained of is as follows:
"2. In passing upon the fact as to whether or not the defendant company was guilty of negligence in transmitting and delivering the dispatch in question, you may consider the hour at which it was delivered to the agent at Harwood, if you find that it was delivered at all, and the hour at which it was received by the plaintiff at Lockhart, and whether such time between receipt and delivery was reasonable time for a dispatch to pass over defendant's lines from one point to the other. By the word *Page 414 negligence as used here, is meant the absence in any case of such care and skill as under the circumstances ought reasonably be exercised."
Special charge number 4 asked by appellant is: "The defendant has the right to establish reasonable rules and regulations for the conduct of his business, and to establish reasonable office hours consistent with the reasonably sufficient service of the public; and if you find that the defendant had established such office hours at any or all of its offices through or by which said message had to be transmitted or handled in order for defendant to transmit and deliver the said message, and that the sender of said message had notice of such office hours, and sent such message subject to and with the understanding that it would probably be delayed by reason of such office hours, and that the delay, if any, in delivery thereof, or the delay, if any, in discovering the mistake in transmission, was occasioned by the intervention during the night while closed under such reasonable rule as to hours for keeping its office open and for closing the same, then any delay so occasioned is not chargeable as negligence to defendant. And if you find that during defendant's office hours, after the opening of its office for business, said message was delivered within a reasonable time, you will find for defendant."
There was no evidence to which this charge was applicable, or that would have made it proper for the court to have given it to the jury. The message was received by appellant's agent at Harwood for immediate transmission, and she forwarded it at once to San Antonio. So no delay could have been caused by its being delivered for transmission at Harwood after office hours.
It was received at San Antonio on the same day, at seventeen minutes past 6 o'clock p.m. There is no evidence tending to show that appellant's office at San Antonio is not open at all hours. The message reached San Marcos from San Antonio at seventeen minutes past 7 p.m. on same day. The evidence shows, from appellant's office hours there, that its office must have been open all night after the message was received; for Miss Wilson, one of its operators there, testified: "Mr. Collins, the manager of the office at San Marcos, goes on duty at 7 a.m., and retires at 7 p.m. My hours are from 7 p.m. to 7 a.m." The message was transmitted from San Marcos to Lockhart, and reached there at 8:20 p.m., August 1, 1891. The office hours at Lockhart are from 6 o'clock a.m. until the arrival of the last train, which is due at 9:15 p.m. So after the message was received at Lockhart, appellant had an hour, lacking five minutes, within office hours in which to deliver it. But the company's failure to deliver it with reasonable dispatch is not placed upon the ground that it did not have time within its office hours to do so, but upon its not being properly addressed. This we have already considered.
If, as is held by our Supreme Court in Western Union Telegraph Company v. Neel, 86 Tex. 368, a party who contracts with a telegraph company *Page 415 for the transmission of a message is bound by reasonable regulations established by it for the conduct of its business, it seems to us, when the regulation is the establishment of certain hours in which to transmit its business, that the company is alike bound by such regulation, and it is its duty to deliver the message within the time established, if it can reasonably do so. Contracts are mutually binding, and if the sender of a message is bound by the regulations of the company, the company is also bound by them. The company had nearly an hour of the time established by its regulation to make delivery of the message, and it made no effort whatever within that time to do so.
The seventh paragraph of the court's charge is not obnoxious to the objection urged against it in the twenty-eighth assignment of error. The charge expressly required the jury to find "that the message was sent for the purpose of enabling Mrs. Jobe to be with her father in his last hours of his life," and that this fact was known to the agent of said company, before it could find a verdict for plaintiff. If it was sent for that purpose, and the purpose was known to appellant's agent, there was no use in giving the agent notice of the purpose. Nor are we in conflict on this point with the decision of the Court of Civil Appeals of the First District in the case of Western Union Telegraph Company v. Kerr, 4 Texas Civil Appeals, 280. The facts in that case are essentially different from those in the case under consideration. In that case Dr. Henderson delivered to the agent of the company the following message for transmission: "To Dr. J.C. Jones, Gonzales, Texas: Come at once, if able, to see Dr. Kerr. (Signed) J.M. Henderson." The message was not delivered until next day. The wife of Dr. Kerr sued the company to recover compensation for mental anxiety and suspense experienced by herself as the result of the failure of Dr. Jones to arrive as she expected. There was no allegation nor proof that the agent of the company knew that Dr. Henderson was acting as the agent of Mrs. Kerr, or that the telegram was intended for her benefit. And the court properly held that neither the pleadings nor evidence showed a cause of action.
We do not believe that appellant has shown in its motion any error requiring a reversal of the judgment of the court below. Therefore the motion for rehearing is overruled.
Motion overruled.
Justice FLY did not sit in this case.
Writ of error refused by Supreme Court. *Page 416