Appellee sued appellant for damages resulting from the failure to deliver a telegraph message announcing the serious illness of his mother, who died a few days after the message was delivered to appellant. The case was tried before the court without a jury, and judgment rendered for appellee for $1000.
There seems to be no testimony in the record supporting the finding that the plaintiff's sister Alice was insane before the mother's death, and that plaintiff's mother and sister were dependent on the charity of the neighbors, and that plaintiff was called Mr. Jackson in the defendant's office. These findings, however, are not deemed by us to be material to the rights of the parties, and they can be eliminated without affecting the result. *Page 274
The other objections to the court's conclusions of fact are not well taken, and with the exceptions stated, said conclusions are adopted by this court. These, in effect, show that the telegram was sent, as alleged in plaintiff's petition; that through the negligence of the defendant's agents and employes at the delivery office, the message was not delivered until it was too late for the plaintiff to attend his mother's funeral, which he would have done if the message had been promptly delivered; and that as a result of the failure to deliver the message, he sustained actual damage to the extent found by the trial court.
Without discussing the objections in detail, we think the plaintiff's petition stated a cause of action. The plaintiff did not plead the written contract which stipulated for written notice of the plaintiff's claim to be served upon the defendant within ninety days; and therefore it is immaterial whether the notice alleged by him would have met the requirements of the contract.
Although the message was directed to the care of Senator Yantis, appellant was under obligation to make delivery to appellee, if that could have been accomplished by the exercise of reasonable diligence. Tel. Co. v. Houghton, 82 Tex. 562.
No error was committed in not sustaining the special defense founded upon the contract, requiring appellee to give written notice of his claim within ninety days. The original petition was filed and citation served within ninety days, and appellee filed an amended answer alleging these facts, which he also proved. Whether or not this was a sufficient compliance with the contract need not be decided, because the burden of proof upon that issue rested upon appellant, and it was not shown that other and sufficient notice was not given in the manner authorized by statute. Railway v. Hays, 35 S.W. Rep., 476.
We have considered all the objections urged by appellant to the ruling of the court concerning the admissibility of testimony, and conclude that no reversible error is shown. The plaintiff had already admitted that the woman who was with him and passed as his wife was not in fact his wife; and we do not think, if the court had compelled him to answer the question referred to in the twelfth assignment of error, that proof of his improper and illegal relations with the woman referred to would have been established any clearer than they were by the facts which he had already stated, and the inference which the court had a right to draw from his refusal to answer the question.
The trial court's conclusions of fact and law are marked filed five days after the court adjourned for the term; and it is contended that they should not be considered, and error is assigned upon the alleged failure of the court to file such conclusions before the court adjourned.
If it be conceded that the conclusions of fact and law could not be properly filed after the court adjourned for the term, still, no ground for reversal is shown. The concluding part of the judgment is in these words: "Thereupon, on the request of defendant, the court filed his conclusions of law and facts, and the same having been done, the defendant *Page 275 in open court excepts." The judgment was rendered on the 28th day of October, 1897, which was three days before the court adjourned, and the solemn declaration made by the court and incorporated in the judgment to the effect that the conclusions of law and fact were then filed, should override and control the file mark indorsed upon the findings by the clerk. It appearing, therefore, that the conclusions of law and fact were filed before the court adjourned, the assignment complaining of the action of the court in not filing them during the term will be overruled.
Though we have not discussed them all in this opinion, we have considered all the questions presented in appellant's brief, and finding no reversible error, the judgment will be affirmed.
Affirmed.
Writ of error refused.