
    JOHNSON v. WESTERN UNION TELEGRAPH CO.
    (Court of Civil Appeals of Texas.
    Dec. 7, 1910.)
    1. Telegraphs and Telephones (§ 37) — Delivery op Messages — Performance op Duty.
    When a telegram is directed in the care of any one, a prompt delivery by the telegraph company to that one is a performance of the duty imposed by law.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. §§ 24-30; Dec. Dig. § 37.]
    2. Telegraphs and Telephones (§ 66) — Delay in Delivery of Message — Burden of Proof.
    An addressee of a message, directed in care of a third person, who seeks to recover for negligent delay in the delivery of the message, must prove that it was not promptly delivered to the third person, and mere proof that the message was not delivered to him within a reasonable time is insufficient.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Dee. Dig. § 66.]
    3. Telegraphs and Telephones (§ 6S)— Delay in Delivery of Messages — Damages.
    Where a telegram announcing the death of the mother of the sendee did not impart notice that she would be buried at another town, and there was nothing to show that the telegraph company had notice thereof, any damages caused by the sendee’s failure, on account of delay in the delivery of the message, to reach that town to attend the funeral, were not recoverable, because not within the contemplation of the company.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    Error from District Court, Calhoun County; James C. Wilson, Judge.
    Action by R. Johnson, against the Western Unión Telegraph Company. There was a judgment for defendant, and plaintiff brings error.
    Affirmed.
    Willett Wilson and Lewis Wood, for plaintiff in error. Proctor, Yandenberge & Crain, for defendant in error.
    
      
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   NEILL, J.

The plaintiff in error, hereinafter called plaintiff, sued defendant in error, hereinafter called defendant, to recover damages for its alleged negligence in failing to deliver this dispatch: “Victoria, Texas, 8/6/1907. R. Johnson, care Olsen Hotel, Yoa-kum, Texas. Come at once your mother died this p. m. J. P. Hickman” — in time to allow him to attend the burial and funeral services of his mother, which took place at Port Lavaca, Tex., on the next day. Among defendant’s pleadings was a general denial. After hearing the evidence, the court peremptorily instructed a verdict for the defendant, and from tne judgment entered upon it the plaintiff has appealed.

. The assignments complain of the peremptory instruction and of overruling plaintiff’s motion for a new trial. The undisputed evidence shows that the telegram was delivered to defendant’s agent at Victoria for transmission at about 8 o’clock p. m. on the day it bears date, plaintiff’s mother having died at 7:45 p. m. on the same day, by the sender, J. P. Hickman, who was deceased’s son-in-law, with whose family she was living at Victoria prior to her death; that the plaintiff was stopping at the Olsen Hotel at Yoakum, in whose care the message was sent, at the time, and that it was handed him there by Walter Olsen, a son of the proprietor, at 9:45 a. m. on the day after it was delivered for transmission, too late for him to reach Port Lavaca to attend the funeral; that, had it been delivered to him prior to 7 o’clock on that morning, he could and would have reached there in time. There was no evidence introduced by either party showing or tending to prove that the telegram was not delivered by defendant at the Olsen Hotel prior to 7 o’clock on the day he received it, nor was there any evidence tending to prove that the defendant or its agents knew that the remains of plaintiff’s mother would be carried to Port Lavaca and be interred there.

When a message is directed in the care of any one, a prompt delivery by the telegraph company to the one in whose care it was addressed is all the law requires. W. U. Tel. Co. v. Young, 77 Tex. 245, 13 S. W. 985, 19 Am. St. Rep. 751; W. U. Tel. Co. v. Pearce, 95 Tex. 578, 68 S. W. 771; W. U. Tel. Co. v. Barefoot, 97 Tex. 159, 76 S. W. 914, 64 L. R. A. 491; W. U. Tel. Co. v. Bryant, 35 Tex. Civ. App. 442, 80 S. W. 406; W. U. Tel. Co. v. Shaw, 40 Tex. Civ. App. 277, 90 S. W. 58; W. U. Tel. Co. v. Terrell, 10 Tex. Civ. App. 60, 30 S. W. 70; W. U. Tel. Co. v. Thompson, 31 S. W. 318; W. U. Tel. Co. v. Elliott, 7 Tex. Civ. App. 482, 27 S. W. 219. Therefore, the burden being upon the plaintiff to prove defendant’s negligent delay in delivering the telegram, he cannot recover by simply showing that it was not delivered to him at the hotel by some one else within a reasonable time. For the party in whose care it was addressed may have received it in time, and may have himself been guilty of the negligence. It was incumbent upon the plaintiff to prove affirmatively that defendant was guilty of negligence. W. U. Tel. Co. v. Bennett, 1 Tex. Civ. App. 558, 21 S. W. 699; 12 Enc. Ev. 407. If a presumption of negligence should be indulged, it might, as well be presumed against the hotel authorities as against the defendant.

Besides, the telegram imparted no notice to the defendant that plaintiff’s mother was to be buried at Port Lavaca, nor was any extraneous evidence introduced tending to show that defendant had such notice. Therefore any damages caused by plaintiff’s failure, on account of delay in its delivery, to reach that city in time to attend her funeral, was not within the reasonable contemplation of defendant, and such damages were too remote to predicate an action upon for their recovery. Postal Tel. Cable Co. v. Smith, 124 S. W. 733; W. U. Tel. Co. v. Kuykendall, 99 Tex. 323, 89 S. W. 965; W. U. Tel. Co. v. Ayers, 41 Tex. Civ. App. 627, 93 S. W. 199.

There is no error in the judgment, and it is affirmed.  