Southwestern Telegraph & Telephone Co. v. Payne

WILLSON, O. J.

(after stating the facts as above). In its brief appellant insists that a cause of action against it was not stated in appellee’s petition, in that it was not therein alleged that appellant “undertook or agreed or became bound to transmit or deliver the call made the basis of the suit,” *989 •and in that it was not therein alleged “that there was a payment or offer to pay for services rendered or to be rendered, or a readiness and willingness to pay therefor.”

[1] It seems to he settled law in this state that a petition in which such allegations or their equivalent is omitted is subject to a general demurrer, and therefore cannot be the basis of a judgment in the complainant’s favor. Telegraph Co. v. Henry, 87 Tex. 165 , 27 S. W. 63 ; Lewis & Renfro v. Tel. & Tel. Co., 59 S. W. 303 ; Tel. Co. v. Smith, 133 S. W. 1062 ; Tel. Co. v. Twaddell, 47 Tex. Civ. App. 51 , 103 S. W. 1120 .

In the Lewis & Renfro Case the allegations were that one Weeks, plaintiff’s attorney at Palo Pinto, notified the defendant’s agent at that place “that he desired to converse with plaintiff Renfro at Jacksonville, and requested said agent to at once call up Jacksonville and get said Renfro to the telephone so that 'Weeks could consult with him,” etc., and that defendant’s agent at Jacksonville received the call and negligently failed to notify Renfro thereof. The court said:

“We think the petition fails to state a cause of action, and the trial court did not err in sustaining the general demurrer. There is no allegation that appellee undertook or agreed to serve appellants in any capacity, or to do any act or thing for failure to perform which ap-pellee .would be liable, and, if any such undertaking can be inferred from any of the allegations of said petition, it was a contract without consideration, because the petition nowhere alleges that appellants paid, or offered to pay, or were ready and willing to pay, appellee anything for the services desired of it.”

In the Smith Case the allegations were that the defendant company was “engaged in the business of receiving and sending telegrams over its wires and lines for pay”; that a telegram was “turned over” to its agent at Kingsland addressed to the plaintiff at Santa Anna; and that, instead of promptly and correctly transmitting and delivering same to the addressee, the defendant negligently incorrectly transmitted and' negligently delayed delivery of the telegram. The court said:

“We think the general demurrer should have been sustained. It will be noted that, while the petition alleges that Mrs. Albert Smith duly delivered to the defendant’s agent at Kingsland the above-mentioned telegram for transmission addressed to plaintiff at Santa Anna, Tex., yet there is no allegation that the said Mrs. Smith, or any one for her, paid defendant for its transmission and delivery, nor is it alleged that defendant bound and obligated itself to deliver said message to plaintiff, nor is there any allegation showing . that there was any contract between said parties relating to the delivery of same. Without such allegations no legal obligation was imposed upon defendant' to transmit and promptly deliver the same.”

It will be noted that, while it was alleged in appellee’s petition that his wife “was willing and ready to pay the toll and expense thereof” to have appellant make a search for appellee in Haskell and put him in communication with Harris so the latter could tell him his child was sick, it was not alleged in said petition that appellant undertook to perform such service. Therefore it must be held that, under the authorities cited, appellee’s petition was subject to a general demurrer, and hence not sufficient as a support for a judgment.

[2] While,, as stated above, it was alleged in appellee’s petition that his wife was ready and willing to pay the expense of getting him to the telephone in Haskell so Harris could talk with him, it seems the allegation was not supported by any evidence offered at the trial. To show liability on the part of appellant to appellee it devolved on the latter to show, in addition to. an undertaking on the part of the former to perform the service in question, a consideration therefor. 1 Elliott on Contracts, § 247; Lewis & Renfro v. Tel. & Tel. Co., 59 S. W. 303 .

Of the assignments in appellant’s brief presenting other questions, the third is sustained. We think it was error, over the objection appellant interposed thereto, to admit as evidence the testimony of the witness Mrs. Ben Clifton set out in the statement under that assignment. The assignments remaining undisposed of, except the ninth, in which the judgment is attacked as excessive, and as to which we will not express an opinion are overruled.

The judgment will be reversed, and the cause will be remanded for such further proceedings as may be had in the court below.

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