This is an action by appellee against appellant for damages for failure to promptly transmit and deliver a certain telegram. The trial before court and jury resulted in a verdict and judgment in favor of appellee for the sum of $750.
By its first assignment of error appellant contends that the court below erred in giving to the jury the paragraph of its charge which authorized a recovery by appellee if appellant received the message at its Dallas office and thereafter failed to exercise proper diligence in its transmission and delivery, upon the ground that appellee's pleadings did not raise that issue. We do not think this contention of appellant can be sustained, in view of the record. We are of the opinion that the following allegations embraced in appellee's petition "that said message was not transmitted and delivered as early as nine o'clock on the night of April 17, 1904, and was not properly transmitted and delivered at all . . . but, on the contrary, by reason of the negligence and carelessness of defendant's agents and servants to whom the transmission and delivery of said message was entrusted, such transmission and delivery was grossly delayed, and it was not delivered to plaintiff *Page 91 or his home, which is in said town of Blanket, till about ten o'clock a. m., April 18, 1904," in connection with those quoted by appellant in its statement under this assignment, properly raised the issue which was submitted to the jury. The agents and servants of appellant mentioned in the quotation above, included those at Dallas and those handling the message subsequent to its receipt at Dallas. We think the allegations to the effect that the agent and operator of appellant when he received the message then and there agreed, promised and contracted with the sender that he would rush same through to its destination and deliver it to appellee as soon as possible, charges a contract upon the part of appellant, especially in the absence of a special exception.
The court in its main charge properly instructed the jury on the issue as to office hours, and it was within the apparent authority of appellant's agent and operator to make the contract complained of; and appellee would not be bound by any rule of appellant of which he had no knowledge. Hence we overrule appellant's second assignment of error.
Appellant's third and fourth assignments of error are not well taken. It was alleged and the testimony tended to prove, that the message was sent for appellee's benefit and that he was damaged by the delay in its transmission and delivery. It is unimportant as to whose agent the sender of the message was, or whether he was previously instructed to send same. The party who in fact was to be served and who was damaged, is authorized to maintain the suit. (Western U. Tel. Co. v. Adams, 75 Tex. 531 [75 Tex. 531]; Western U. Tel. Co. v. Beringer, 84 Tex. 38.)
We overrule appellant's fifth assignment of error for reasons stated in disposing of its second. We think the evidence warranted the jury in finding that appellant agreed to rush through and promptly deliver the message; and we do not think the fact that appellee was not at home at the time the message would have been received at Blanket had it been promptly transmitted, would relieve appellant as matter of law from the exercise of ordinary diligence in delivering the message to him or notifying him of its receipt, but it was a question of fact for the jury to determine under all the evidence adduced as to whether the message would have been received by appellee in time for him to have taken the train on the night of the 17th, had the appellant exercised proper diligence in transmitting and delivering same. The testimony shows that when the message was received at Blanket appellee was absent, and appellant delivered it to his wife at his home and he was promptly notified of its receipt. Hence we overrule appellant's sixth assignment of error.
There is no merit in appellant's seventh assignment of error, as the suit was brought and citation issued and served within ninety days after the message was received by appellant for transmission.
There was no error in the action of the court complained of by appellant's eighth assignment of error. It was not required of appellee to allege in his petition that he had replied to the message announcing his coming, or that the funeral would not have been postponed had he done so. The allegations in his petition were sufficient to show liability on the part of appellant, and if the funeral would have been postponed *Page 92 until the arrival of appellee, it was matter of defense to be pleaded and proven by appellant.
The evidence, admission of which is complained of by appellant's ninth assignment of error, was proper on the issue as to whether appellant's rule as to office hours was reasonable.
There was no error in the paragraph of the court's charge complained of in appellant's tenth assignment of error, especially when considered in connection with other portions of the charge.
There was no positive error contained in that part of the charge of the court complained of in appellant's eleventh assignment. If appellant desired a more full or specific instruction on the subject embraced in the charge complained of, it was its duty to request same. And the instruction set out in appellant's second eleventh assignment of error was properly refused, as there was no evidence authorizing it, and because same ignored appellee's rights in the event appellant failed to use proper diligence to deliver the message within the free delivery limits.
The message being sent for the benefit of appellee, it made no difference who wrote it. Hence appellant's special charge embraced in its thirteenth assignment of error was properly refused.
There was no error in refusing appellant's special charge embraced in its fourteenth assignment of error, because it assumes that delays were caused by the wires of appellant being busy in the transmission of other messages, and because under this special charge appellant would be relieved of liability if its wires were busy in the transmission of other messages, regardless of the character of same, or for whose benefit they were being transmitted. Under this special charge appellant would be relieved of liability if its wires were busy in the transmission of some unimportant matter for itself, which we do not believe to be a correct principle of law.
Appellant's special charge set out in its fifteenth assignment of error ignores appellant's liability if there was a special contract to rush and promptly deliver the message; and the court's main charge properly instructed the jury as to appellant's rights under its rule in reference to office hours. Hence said special charge was properly refused.
The special charge requested by appellant and embraced in its sixteenth assignment of error, ignored appellant's liability in the event of negligence on its part in the transmission and delivery of the message after its receipt at its Dallas office, and, for that reason, should not have been given to the jury; and, in so far as it was proper to instruct the jury on the subject matter of that special charge, the main charge of the court was sufficient.
Appellant's seventeenth assignment of error is overruled, because there was evidence, as shown by the record, sufficient to support a finding by the jury that W. W. Simmons was, on the date he received the message in question, the agent of and acting for appellant; and, further, there was evidence sufficient to support a finding by the jury that the message was received by appellant at its Dallas office, and that after so receiving same it failed to exercise proper diligence in transmitting and delivering same to appellee, which was the direct and proximate cause of his damages, and that being true, the verdict and judgment *Page 93 were supported by the evidence, although Simmons, the party who received the message at Weatherford, might not have been the agent of appellant.
No reversible error being pointed out in the record, the judgment of the court below is affirmed.
Affirmed.
Writ of error refused.