The first assignment of error relates to the refusal of the court below to quash the citation. In this action of the court we find no error. The citation required the defendant itself to appear and defend the suit — not its agent, as claimed by the appellant. *Page 414
The second assignment of error questions the refusal of the defendant's application for a continuance. The court did not err in overruling it. The citation was served on the defendant's agent upon the 14th day of February, 1890, yet no interrogatories were filed to be propounded to the witness, who resided in Galveston County, until the 10th day of March of that year, and which was the day when the case was tried. The District Court had convened on the 3d of March and the cause was on the 7th set down for trial on the 10th.
Clearly appellant made no sufficient showing of diligence, under these circumstances, as would entitle it to a continuance as a matter or right.
The third assignment, that "the court erred in overruling defendant's special exception wherein it demurs to plaintiff's petition in that he seeks to recover damages, because plaintiff was not present to give comfort and consolation to his aged mother, as this was an injury suffered by the mother and can not be recovered in an action by the plaintiff, her son," can not be considered, because we fail to find, after diligent search, any order of court or bill of exceptions showing that the same was ever called to the attention of the court, or that it in fact made the ruling complained of. We may remark, however, that the petition only sought to recover damages for the injury done to plaintiff himself, not for the effect of his absence upon his mother, and the court below was careful to instruct the jury to confine the damages to the injury sustained by the plaintiff himself. While this particular portion of the petition was not in so many words referred to in the charge of the court, still the defendant omitted to request a special instruction to eliminate this matter from the consideration of the jury, even if it may be supposed that they considered it at all. We are by no means certain, in any event, that it was not a proper element of damage confined as it was entirely to the injury to the plaintiff himself.
The fourth and seventh assignments of error may be considered together, as they relate to the same subject, viz., the refusal of the court to give the third and fifth special charges requested by the defendant. The first of these instructions is as follows:
"You are charged that the defendant can limit its liability in transmitting telegraph messages, sending them under certain conditions, which conditions must be assented and agreed to by the sender of the message. The company may limit its liability for delay caused by inability to work its wires from wire troubles or overcrowding of the wires; and if you find that the message in question was written on a form containing a condition that the company would not be liable for delaysarising from unavoidable interruption in the working of itslines, and said message was agreed to by the plaintiff by his agent writing the message on a blank containing said condition and signing the same, then the company is not liable for any delay caused by the interruption *Page 415 in the working of its lines, if you find that there was any such interruption, and you will so find."
The second is to this effect: "The defendant company being a telegraph company, can limit to a certain extent its liability; and if you find that the message in question was written on a blank containing certain conditions, among others that the company would not be liable in damages beyond fifty times the amount paid for sending the same, without the delay is caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents, and if you so find you will return verdict for plaintiff only for fifty times the amount paid for the transmission of the message in question."
It is doubtful if these assignments ought to be considered. We have searched the record in vain for the proof of any fact or state of facts that would render either of these charges applicable, even if it were conceded that they announce the correct rule of law. By nearly all of his witnesses the plaintiff proved the contents of the telegram upon which this action is based, viz., "Emma died last night; will be buried this evening," as we have before shown, but here the evidence stops, and as to any part of the telegram or its conditions, if any, we find no proof in the statement of facts. The stipulations claimed by appellant as limiting the liability of the company we do find in the telegram as set out and made an exhibit to defendant's answer, but it does not appear that the defendant ever offered or attempted to offer them in evidence before the court or jury. The telegram is identified by several witnesses as the one sent to the plaintiff, but no mention is made of any other terms or conditions. The nearest approach thereto that we have been able to find is to be found in the testimony of August Grabbo, the man who wrote the telegram: "I took the message to Smith, the operator, at the request of August Schoppe. That is the message [identifying message attached to defendant's answer] and my handwriting." This certainly does not prove the printed stipulations of the telegram relied on by the defendant, or that they were offered or introduced in evidence. We think it entirely clear as a matter of practice and of law that the identification of a written instrument for the purpose of introducing it in evidence is not equivalent to its introduction in evidence in fact before the court and jury. This is perhaps an inadvertent omission in the preparation of the statement of facts, but nevertheless the proof does not appear to have been made.
We have, however, considered the charges under the facts of the case, in view also of the sixth assignment, which raises in substance the same question presented by the fourth assignment, as to the sufficiency of the evidence in that regard to justify the verdict, but we do not believe that any of these assignments are well taken in the light of the evidence and issues in this case. The court below seems to have sufficiently *Page 416 guarded in its general charge to the jury, as we think, every right of the defendant on the question of negligence as in indispensable prerequisite to any recovery by plaintiff at all. The court charged the jury as follows:
"The question of diligence is one to be determined by the jury from all the evidence; and if you believe from the evidence that the defendant's agent was not guilty of negligence, but that he exercised reasonable care and diligence in getting said message through, then you will find for the defendant." Railway v. Miller, 79 Tex. 78; 21 Am. and Eng. Corp. Cases, 80.
Again: "The defendant would be bound to receive the telegram, if such was intrusted to its care, and transmit the same with reasonable diligence, and would be held to the exercise of such care and diligence as would be reasonably adequate to a faithful discharge of its duty."
Elsewhere in the charge the right of the plaintiff to recover is made directly to depend upon proof of negligence upon the part of the defendant or its agents and employes. This did not make it liable, is a common carrier would be, as an insurer. It therefore clearly appears that the fifth special instruction as asked by defendant was inapplicable — certainly unnecessary to any issue submitted to the jury or presented in the plaintiff's petition, since according to both the terms of the stipulation itself and the requested instruction the amount of damages were not to be restricted to "fifty times the amount paid," if "the delay" was attributable to the "want of due care on part of the company, its servants, or agents." Had the stipulation not contained this latter exception it would have been unreasonable and void. Telegraph Co. v. Neill, 57 Tex. 283, approved in several later cases.
The stipulation contained in the third special instruction, before noted, that "the company will not be liable for delays arising from unavoidable interruption in the working of its lines," does not, we think, fairly embrace the matter developed in the evidence as the defense. The "interruption" mentioned would most naturally refer to such as may be caused by electrical disturbances or others beyond the control of the defendant. Telegraph Co. v. Edsall, 63 Tex. 674. The fact that the defendant's wire was, on the day the telegram was delivered to it for transmission, in the uninterrupted control and use of the railway company, does not indicate any "unavoidable interruption in the working of its lines," or fall within the terms of the stipulation. It appears to us that to give the stipulation the construction contended for by appellant would render it unreasonable and void if it is designed to have general application. Gray's Com. by Tel., p. 79, sec. 50; 8 Am. and Eng. Corp. Cases, pp. 1, 44, notes. Of course we are not discussing any supposed case — not shown to have influenced the defendant in this case — where to prevent collisions, wrecks, etc., the railway company should, for the time being, be allowed the exclusive use of the wires. *Page 417
On the Sabbath day in question, if we are to credit the operator to whom the message was intrusted, and who was the agent of both the defendant and the railway company, the Western Union Telegraph Company seems to have abandoned its franchise and gone out of business between the towns of Burton and Brenham — at least for that day — and turned over "its lines" to the exclusive dominion of a train dispatcher (at Galveston) of the railway company, and who, thus invested with autocratic powers often craved perhaps by ordinary mortals but rarely possessed, appears to have done a "rushing" business and worked the wire for all that was in it, to the utter exclusion of the public. Under such circumstances it would be a little difficult to regard the railway company in the light, strictly, of an employer of the defendant company. This would seem also to meet the point made by the appellant that it could not give preference to any person or corporation employing it. It certainly did on that day, however, give a decided and exclusive preference to the railway company.
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. If it was the habit, not infrequently, as the testimony of the operator shows, for the railway company to usurp the defendant's wire with its consent, to the exclusion of every one else, then the defendant should have provided another wire to serve the public, or as many as were "reasonably adequate" to the discharge of the duty devolved upon it from the very nature of its organization and business. Telegraph Co. v. Scircle, 10 Am. and Eng. Corp. Cases, 616; Railway v. Smith, 63 Tex. 327. If it failed to do this, that amounted to negligence under such circumstances, regardless of any special stipulation. We do not wish to be understood as holding that it is the duty of telegraph companies to provide as many wires as may be necessary to serve every individual, promptly and at once, who may seek its service, but we do simply hold under the facts of this case that if the telegraph company allowed the railway to occupy its only wire for any considerable time to the exclusion of the public, then it should have provided another wire for the use of other employers so as to afford equal or at least reasonable facilities to all. Gray's Com. by Tel., 79; The State v. Telephone Co., 8 Am. and Eng. Corp. Cases (Neb.), 1. Since the omission now complained of occurred, the company has put up another wire, and thereby apparently confesses that one only was inadequate.
This court in the case of the Western Union Telegraph Company v. Broesche, 72 Tex. 654, administered a timely admonition to the appellant on account of the negligence of its agent at this very same Burton *Page 418 Station in allowing its office to be closed, so that an important telegram received there was not delivered in a reasonable time. It was held that although the message was received for transmission at the initial office "after the usual hours of closing the office at Burton," this constituted no defense to the action. We do not doubt the correctness of this decision, or that the principle therein announced — that having received the telegram it was bound to transmit it — is applicable to the present contention. In any event the court was not required to select the isolated facts relied on by the defendant and charge that they, per se, constituted a legal excuse. Munn v. Illinois, 94 U.S. 113.
The remaining portion of the sixth assignment not already disposed of relates to the effect of the regulation of the company that its office would "not be open from 10 a. m. until 4 p. m. on Sunday," as testified to by the witness Smith, of which regulation the sender was informed. The message, however (and which is termed a "rush message"), was in fact received by the agent for transmission about 8 o'clock in the morning, before the operation of the rule began. The court below gave the sixth special charge requested by defendant, to the effect that the defendant would not be liable for any delay occurring between those hours if the sender was informed of the regulation. This was certainly as favorable a presentation of the law on this subject as the appellant could legally demand under the facts of the case. It is evident that the telegraph company was not observing the Sabbath, but on the contrary allowed its wire to be kept red hot, at least in the transmission of the railway's business during the greater part of the entire day. The law beneficently endows telegraph companies with incapacity to violate the Sunday law by "sending and receiving telegrams" on that day, and not at the instance of the railroad alone. Gen. Laws, Reg. Sess., 18 Leg., 67; Telegraph Co. v. Yapst, 25 Am. and Eng. Corp. Cases, 519. The verdict of the jury is not against the evidence in this particular.
What we have already said disposes of the fifth assignment of error.
The eighth assignment of error, that the court erred in refusing the fourth special charge asked by defendant, to the effect that the telegram must, to be actionable for consequential damages, show on its face therelationship that existed between "Emma," the deceased, and the plaintiff, can not be sustained under repeated decisions of the Supreme Court. The same question is presented in the ninth assignment on the sufficiency of the evidence to sustain the verdict. If the importance of the telegram being promptly transmitted and delivered reasonably appears from its terms, that is sufficient, whether the precise relationship is indicated or not; but it may be remarked that a telegram very similar to the present one, viz., "Billie is very low, come at once," *Page 419 was held to sufficiently give notice of the relationship, or at least to put the company on inquiry. Telegraph Co. v. Moore,76 Tex. 66; Telegraph Co. v. Adams, 75 Tex. 533 [75 Tex. 533]; Telegraph Co. v. Feegles, 75 Tex. 537 [75 Tex. 537]. To require the family pedigree to be inserted in telegrams announcing serious illness or death would deprive the greater part of the public of the benefits of telegraphy; and the only apparent object of the requirement of detail in such cases is, as was said by the Supreme Court of Illinois in regard to the "repeating" of messages to insuredelivery, "to increase the revenue of the companies." Telegraph Co. v. Tyler, 74 Ill. 170.
We do not think under the facts of the case that the first special charge asked by the defendant and refused by the court, and which is made the basis of the eleventh assignment, ought to have been given under the facts and issues in the case. The plaintiff did not claim nor rely upon any delay or other act of the company prior to the delivery of the telegram for transmission. The delay of his relatives or friends in not sooner delivering the telegram to the company — in other words, on the day preceding — was therefore irrelevant and not an act of the plaintiff contributing to the failure of the defendant, or to the injury.
At last it now only remains to dispose of the twelfth assignment of error — the tenth having been omitted from the brief of appellant. This assignment claims that the verdict of the jury is excessive in amount. We are unable to so hold. We have given in the synopsis most of the evidence on this subject, and it can not surely be said that the verdict is without evidence to support it or against the great preponderance of the testimony. Under a system of jurisprudence where the jurors are made the sole judges of matters of fact, they are as independent in their sphere in legal contemplation and presumably as fair and honest as the judge on the bench. Where their power is thus made by law exclusive, some proof of a satisfactory nature ought to be furnished that they were influenced by passion or prejudice or other improper motive in rendering their verdict before the power of the court to annul the verdict for these reasons could be lawfully exercised. Even when a verdict is very large in amount, that affords at best but a suspicion of improper influence. But in this case the amount awarded is not unreasonably large, nor indeed so great as in many other cases where the verdicts were sustained. Some of these cases we have cited already, many others may be found in the reports.
We can not therefore hold that the verdict of the jury was influenced by any improper motive in assessing the amount of the damages, although the effect of the verdict may be, as said in the able argument for the appellant, to allow the plaintiff "to coin his tears into silver dollars." The court below carefully instructed the jury to allow no *Page 420 damages against the appellant as a penalty, nor to the plaintiff on account of "sorrow for the loss of his sister."
We conclude that the judgment ought to be affirmed.
Affirmed.
Adopted March 24, 1891.
Stewart Stewart argued a motion for rehearing for appellee. Motion transferred to Austin and there refused.