Southwestern Telegraph and Telephone Company v. E. K. McCoy, 102 Tex. 476

Mr. Chief Justice Gaines delivered the opinion of the court. This was an action to recover damages for mental anguish alleged to have been caused by a failure of the telephone company to deliver a call for E. K. McCoy sent.from Cleburne to Ft. Worth, by which McCoy was expected to be notified of the dangerous illness of his child, in time to have taken the evening train at Fort Worth and to have reached Cleburne before the death of the child, which occurred next morning. The jury found a verdict for the plaintiff, which was approved by the Court of Civil Appeals and the judgment affirmed.

We granted the writ of error in this case upon the ground, in substance, that the telephone company had done all it contracted to do, and was therefore not liable. In this we now think that we were mistaken. Hickman, who, at the request of Mrs. McCoy, put in the call for E. K. McCoy at Fort Worth, testified that "he told the long distance operator for the company that McCoy was working at the old roundhouse of the Frisco Eailway Company in Fort Worth, and that he would be found there. But he does not say that his call was for that place only.

It was a mere direction as to the place where McCoy would likely be found, and was intended simply as an aid to the company in finding him. McCoy testified that on the day the call was put in, January 20, 1907, he was at work at the Frisco roundhouse, from fifty to one hundred yards from the timekeeper’s office; that he worked from seven a. m. till twelve m. and then from 12:30 p. m. until 4 p. m., and that he received no telephone message that day, nor a call for any. That he knew the party in charge of the office and that the party knew him. This testimony was undisputed.

It follows that if instead of relying upon the telephone they had sent a message to the old Frisco roundhouse, he would have been found. It also appeared in evidence that in the afternoon, at Cleburne, Hickman informed the operator there that McCoy would be found at 1614 Main Street, Fort Worth, and was charged by him an extra fee of fifteen cents for sending there. This shows, as we think, that the telephone company did not rely upon the direction calling for the old Frisco roundhouse, but felt obliged to find him elsewhere.

The other assignments of error raise practically the same question and for the reasons stated they are overruled. The judgments of the District Court and Court of Civil Appeals are affirmed. Affirmed.