Opinion
May 31, 1911. Rehearing Denied July 1, 1911.
Appeal from Fayette County Court; Geo. Willrich, Judge.
Action by J. P. Saxon against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Appellee's brother sent him a telegram from Trinidad, Tex., to the effect that he was dangerously sick, and to come at once. This telegram, when received by appellee, was dated Trinidad, Colo. Appellee did not know where his brother was, but did not think he was in Colorado, and so informed the operator at La Grange, where said telegram was received, and requested him to repeat said telegram. Said operator informed him that he had done so, and that the telegram was correctly dated at Trinidad, Colo. Appellee sent a telegram directed to his brother at Trinidad, Colo., but received no answer. He did not know that there was such a place as Trinidad, Tex., until after his brother was dead and buried. Had the telegram shown that it was from Trinidad, Tex., he could, and he alleged and testified that he would, have gone to his brother and reached him before he died. Judgment for appellee for $950.
Hume Hume, for appellant.
John T. Duncan, for appellee.
The appellant did not file any assignment of errors, but asks us to reverse this case for fundamental error, in that, as it contends, the petition does not allege any contract with appellant to transmit said telegram. If appellant's contention is correct, the judgment should be reversed for fundamental error apparent upon the record. There can be no valid judgment without a suit. There can be no suit in the county or district court without a written petition. A petition which does not state any cause of action is, in law, no petition. It is our duty, without any assignment of error, to examine the record sufficiently to see if the court could have lawfully rendered any judgment for the plaintiff.
In the absence of a demurrer, a petition will be given every reasonable intendment in its favor. Tested by this rule, we think the petition is sufficient to sustain the judgment.
The petition contains no direct averment of a contract on the part of appellant to transmit said telegram. But it is alleged in said petition that the defendant at the time was a telegraph company, engaged in the business of sending and delivering messages for hire within the state of Texas and elsewhere; that it had an office at La Grange, Tex.; that on January 20, 1910, plaintiff's brother resided at Trinidad, Tex.; that his said brother wired a telegram to plaintiff, dated at Trinidad, Tex. That appellant's agent at Trinidad, Tex., who sent said telegram, knew that it was dated at Trinidad, Tex.; that his brother prepaid said telegram; that a copy of said telegram was delivered to plaintiff by defendant's agent at La Grange, Tex., but was dated Trinidad, Colo., instead of Trinidad, Tex.; that at plaintiff's request defendant's agent at La Grange had said telegram repeated, and that he informed plaintiff that said telegram was received by defendant at Houston in the form in which it was delivered to plaintiff; that the copy of the telegram delivered to plaintiff was not a true copy of the telegram that was filed with the defendant at Trinidad, Tex. Under the liberal construction required in the absence of a demurrer, we think these averments reasonably show that appellee's brother delivered a telegram to defendant's agent at Trinidad, Tex., and that appellant undertook to transmit the same to La Grange, Tex., and that appellant breached said contract.
Filing a telegram with the agent of a telegraph company, and prepaying the charges on the same, and the attempt of the company to transmit such telegram, makes a prima facie case of a contract on the part of the telegraph company to correctly transmit such telegram. These facts reasonably appear from the petition in this case.
For the reasons above set out, the judgment herein is affirmed.
Affirmed.