
    WESTERN UNION TELEGRAPH CO. v. GARY.
    No. 9483.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1931.
    Albert Stone, of Brenham, and Prancis R. Stark, of New York City, for appellant.
   GRAVES, J.

The appellee was awarded $550 damages for the failure of appellant to promptly deliver to him at Hempstead, Tex., a telegram, sent from Huntsville, reading as follows:

“Huntsville, Texas.
“Jesse Gary, Hempstead, Texas.
“Aunt Emma is dead.
“Georgia Ann Butler.”

In answer to special issues submitted to them, the jury found, first, that appellant by the use of ordinary care could have delivered the message to appellee in time for him to have reached Huntsville via the transportation facilities available for the funeral of deceased ; second, that such relation between appellee and the deceased existed that he suffered mental anguish by reason of not receiving notice of her death in time to attend her funeral; and, third, that the appellant did not have any notice of such relationship at the time the message was sent.

An examination of the statement of facts discloses that this third and last-mentioned finding of the jury, if not undisputedly so, was so strongly supported by the evidence as to make it binding upon this court. That being true, the trial court had no alternative than to grant the appellant’s motion for a peremptory instruction in its favor. That having been refused, this court is under the duty of now reversing and rendering the cause against the appellee. That order will be entered.

Reversed and rendered.  