
    WESTERN UNION TELEGRAPH CO. v. ULMER.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1912.)
    TELEGRAPHS AND TELEPHONES '(§ 67) — DELAY in Delivery of Messages — Damages.
    Where a husband who had procured the' services of a nurse for his wife for three weeks, without compensation, under an agreement to wire her money for expenses, deposited the money with a telegraph company, and sent the nurse a message to come at once, and that the money was deposited, and the company delayed the delivery of the money, so that the husband was obliged to employ another nurse, who charged compensation, the company was liable for the compensation paid the other nurse for the three weeks, but not for compensation paid for nursing after that time.
    [E'd. Note. — Por other cases, see Telegraphs and^Telephones, Cent. Dig. §§ 64-68; Dec. Dig. 67]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by J. J. Ulmer against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.
    Conditionally reversed and remanded.
    N. L. Lindsley and E. P. Dougherty, both of Dallas, and Geo. H. Pearons, of New York City, for appellant. John B. Daniel, of Temple, for appellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   Findings of Pact.

JENKINS, J.

Appellee, a colored man, resided in Temple. His sister-in-law, Mrs. Annie Griffin, who was a school teacher and a trained nurse, was living in Colgate, Okl. He had arranged with his said sister-in-law to come to Temple and nurse his wife, who was expected to be confined in childbirth, upon his notifying her and wiring her money for expenses. On December 8, 1910, appel-lee deposited in appellant’s office at Temple $10 and sent the following telegram to his sister-in-law at Colgate: “Am wiring ten dollars. Come to Mollie Cooper’s, Temple, at once.” Appellee and his wife were boarding at Mollie Cooper’s. At the time of the delivery of said telegram appellee paid appellant’s agent $1.12 for transmitting the same, and informed said agent of the agreement between plaintiff and the said Annie Griffin and the facts and circumstances requiring the speedy transmission and delivery of said telegram and money. Said telegram was promptly delivered, but upon inquiry for the money on that day, and on the 9th, 10th, and 11th of December, Annie Griffin was informed by appellant’s agent at Colgate that no money had been sent to her. On the 11th of December, she borrowed at Colgate a sufficient amount of money to pay her expenses and came to Temple, arriving there at 2 o’clock in the morning of December 12th. In the meantime appellee’s wife had been confined, and he had employed Mollie Cooper, who was a trained nurse, to take charge of the case until his wife should get well, she being the only colored trained nurse in Temple, and refusing to take the case upon any other terms. She remained in attendance as such nurse for eight weeks at an agreed salary of $25 per week and board, which he alleges was worth $7.50 per week, and brings this suit for $261.12, the amount agreed to be paid Mollie Cooper, the amount of said board, and the $1.12 paid for said telegram. The said Annie Griffin had arranged with the trustees of her school at Colgate to dismiss said school until the 1st of the following January, and did dismiss said school until that time, and she remained at Temple with her sister until December 28th, when she returned to Colgate to take charge of her school. The court gave judgment for $201.12, disallowing said claim for board, upon the ground that, had plaintiff secured the services of Annie Griffin, hd would have been compelled to board her. The agreement with said Annie Griffin was that she was not to charge anything for her services, and she would have taken charge of said case without pay from the time that she could have arrived had said money been promptly delivered, to wit, on December 10th, and would have remained in charge until December 28th, at which time she would have returned to Colgate as she did.

Opinion.

Under the undisputed facts of this case, as above set out, appellee was not entitled to a judgment for more than three weeks at $25 per week, as, had said telegram been delivered, this was the extent of the services that he would have obtained from his sister-in-law, Annie Griffin, and, had it been necessary to have employed a trained nurse thereafter, such necessity would not have arisen from the failure of said Aimie Griffin to receive said money, for which reason we hold that said judgment was excessive to the extent of $125. If the ajppellee herein shall remit that amount within 10 days from the date hereof, the judgment will be reformed, and rendered in his favor for $76.12; otherwise it will be reversed and remanded.

The appellee having remitted the sum of $125, the judgment in this case is here reformed and rendered in accordance with the foregoing opinion.  