Western Union Telegraph Co. v. Midgett

On Motion for Rehearing.

The appellees in this case have filed a motion for rehearing, in which they earnestly insist that we were in error in the construction placed upon their pleading as shown by our former opinion. We have again given this matter careful consideration, but cannot escape the conclusion that our construction of the pleading was correct. We therefore must adhere to our order that the judgment be reversed.

We have also concluded, however, that we should not render judgment for appellhnt, but that the cause should be remanded for another trial. As suggested by the motion, it is reasonably clear that the trial court proceeded upon a misconception of the appellees’ petition, and treated it as one not based upon a special contract for delivery of the message beyond appellant’s free delivery limits. The case having been tried upon an incorrect interpretation of the pleadings, the cause ought to be remanded, unless we are able to say that the record shows with reasonable certainty that appellees will not be able to establish by proof the cause of action made by their pleading, and we cannot so say.

For these reasons, our former order that the judgment be rendered in favor of appellant is here now set aside, and it is now ordered that the judgment be reversed, and the cause remanded.