
    KOLB v. WESTERN UNION TELEGRAPH CO.
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1911.)
    Telegraphs and Telephones (§ 53) — Delay —Damage—Pboximate Cause.
    Though a telegraph company was negligent in delivery of a message concerning the burial of plaintiff’s brother, it was not liable, where plaintiff would not have been able to reach the place of burial in time therefor, even if the message had not been delayed.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 53.]
    Error from District Court, Payette County; L. W. Moore, Judge.
    Action by Mrs. Gusta Kolb against' the Western Union Telegraph Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    L. D. Brown, for plaintiff in error.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JENKINS, J.

Plaintiff in error brought this suit for damages on account of the failure of defendant in error to deliver a telegram notifying her of the death of her brother, and for failure to deliver her reply to said telegram, whereby she alleges that she was prevented from attending the funeral of her brother. Upon the conclusion of the evidence on behalf of plaintiff in error, the court instructed the jury to return a verdict for defendant in error.

In this there was no error, for, although the evidence shows that defendant in error was negligent in failing to deliver the telegram sent to plaintiff in error, there having been an unnecessary delay of perhaps three hours in making such delivery, it further conclusively shows that, had said telegram been promptly delivered, plaintiff in error would not have been able to reach the place where her brother’s remains were buried in time to have been present at such burial. The evidence indicates that, had her reply been delivered on the day that it was sent, the funeral would have been postponed; but there was no negligence in failing to deliver the reply, as the party who sent said telegram, instead of waiting for a reply, left in 30 minutes after sending the same, and was some 12 miles in the country when the reply was received. He told the agent that he was not expecting any_ answer, but that, if one came, to hold it for him until he returned next day, which was done. Plaintiff in error in the meantime had arrived, but too late for the burial.

The negligent failure to deliver a telegram furnishes no cause of action against a telegraph company, unless the party to whom it should have been delivered suffers some injury by such failure. The judgment is affirmed.

Affirmed.  