Opinion
No. 7937.
October 17, 1921.
Appeal from District Court, Harris County; Ewing Boyd, Judge.
Action by Katherine Dick against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.
Hume Hume, of Houston, and Francis R. Stark, of New York City, for appellant.
Presley K. Ewing, Guy Graham, and Ewing Werlein, all of Houston, for appellee.
This is a suit instituted by appellee, Katherine Dick, against appellant, Western Union Telegraph Company, to recover the sum of $2,750 as damages alleged to have been suffered by her by reason of the failure of appellant to promptly transmit and deliver to addressee at Houston, Tex., a message delivered to it for transmission at League City, Tex., on the 25th day of March, 1919.
The appellant, defendant in the trial court, for answer, among other things, alleged that at the time the message was delivered for transmission and at the time it should have been delivered to addressee its telegraph line and properties appertaining thereto had been taken over by the United States government, and at such times were in the exclusive control of said government, and were being operated by the same, and therefore it was not liable for the damages complained of. The undisputed facts sustain this answer.
In the case of Western Union Telegraph Co. v. Wallace, 235 S.W. 282 decided by this court (the opinion not yet [officially] published), we held that under a state of facts as above stated no recovery could be had against the Western Union Telegraph Company. Since the decision of the Wallace Case by us the Supreme Court of the United States has decided the case of Western Union Telegraph Co. v. Poston, 256 U.S. ___, 41 Sup.Ct. 598, 65 L.Ed. ___. Such decision fully sustains our holding in the Wallace Case, and is decisive of the question presented in this case in favor of the appellant.
It is therefore the opinion of this court that the judgment of the trial court should be reversed, and judgment be here rendered for appellant; and, it is so ordered.
Reversed and rendered.