On Motion for Rehearing.
[5] It is insisted that appellant’s special charge No. 2 should have been given notwithstanding the assumption that appellant undertook the trip to Bristol, Tenn,, on the faith of the agent’s statement that the telegram had been given to the addressee in person for the reason that such fact was undisputed. True, it was so testified by appellant without direct contradiction. It must be remembered, however, that notice of the contemplated journey must be brought home to the sending agent before the special damages claimed were recoverable, and, appellant being an interested witness, the jury were not bound to believe him. See H. E. & W. Tex. Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 971; Bolt v. State Savings Bank of Manchester, Iowa, 145 S. W. 707. The court could not therefore assume, as special charge No. 2, in effect, did assume, that the sending agent knew that appellant’s trip to Bristol was dependent on whether the telegram was delivered to the addressee in person.
The error of the writer in stating in our original conclusions that the tariff sheets were introduced in evidence is wholly immaterial, in view of the undisputed fact that 80 cents was the amount charged and paid by appellant for the transmission and delivery of.the telegram. There can be no reasonable contention from the record that the 80 cents was intended to cover any additional expense.
We think the motion must be overruled.