
    WESTERN UNION TELEGRAPH CO. v. STEWART.
    (No. 7938.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1921.)
    1. Telegraphs and telephones <&wkey;26%, New, vol. 7A Key-No. Series — Not Hable for negligence during government control.
    A telegraph company is not liable for damages caused by failure promptly to deliver a message while its system was under control of the United States government.
    2. Telegraphs and telephones &wkey;>68(2)— Mental anguish alone not recoverable for delay in delivering interstate message.
    Damages for mental anguish alone are not recoverable in an action for delay in delivering an interstate telegraphic message.
    Appeal from District Court, Harris County; Ewing Boyd, Judge.
    Action by W. S. Stewart 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.
   PLEASANTS, C. J.

This appeal is from a judgment of the court below in favor of ap-pellee and against appellant for $1,000 damages for failure of appellant to use reasonable care to promptly deliver to appellee a telegraphic message informing him of the fatal illness of his father, which was received by appellant at Chattanooga, Tenn., on December 13, 1918, for transmission and delivery to appellee at Houston, Tex. ,

The appellant defended in the court below upon the ground that it was not liable for the damages sought to be recovered against it in this suit because at the time the message in question was received and transmitted the telegraph system was in the control and possession of the government of the United States and was being operated by the govT ernment,, and because the message was interstate, and the only damages sought for delay in its delivery were for mental anguish.

Both of these defenses were valid and should have been sustained by the trial court, and, being presented in this court by proper assignments must be sustained here.

The opinions of this court in the cases of Telegraph Co. v. Wallace, 235 S. W. 282, and Telegraph. Co. v. Kilgore, 220 S. W. 593, discussed and decided these questions and cite the opinions of United States Supreme Court which uphold those decisions, and it is unnecessary for us to add anything to what is said in the opinions cited.

It follows that the judgment of the court below should be reversed, and judgment'here rendered for appellant.

Reversed and rendered. 
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