The Court of Civil Appeals for the Fourth Supreme Judicial District has certified to this court the following statement and question:
"In the above styled and numbered cause, pending on appeal in this, the Court of Civil Appeals for the Fourth District of Texas, at San Antonio, a question of law arises which this court deems advisable to submit to the Supreme Court for adjudication, and it has accordingly directed me to certify same to your honorable court for decision, it being as follows:
"Explanation. — C.W. Giffin left Toyahville with the body of his child to take same to Sabinal for the purpose of interring it in the family burial ground there. He traveled all day by wagon to Marfa, the nearest railroad and telegraph station, arriving there in time for the evening train going to Sabinal. He had left his wife critically sick, and also another child seriously sick of the same disease of which this child had died, at his home remote from neighbors, and with no one to properly care for them. At Marfa he paid for and delivered for transmission this message: "A.J. Durham, Sabinal, Texas. Will be there tomorrow to bury our baby. C.W. Giffin." He explained to the operator at the time of sending the message that he was sending it to his brother-in-law, at Sabinal, where he had other relatives, and that his reasons for sending the same were that his relatives at Sabinal might be notified in time to meet him on arriving there with the corpse, and that all arrangements might be made for the funeral without delay on plaintiff's arrival; that he had left his folks at home sick, and that he was for that reason anxious to return to them by the west-bound train from Sabinal the next evening, and that this was also a reason for sending the telegram, *Page 532 and requested the operator, for these reasons, to hasten the sending of the message, who promised a prompt delivery of it.
"The telegram was not sent, and this resulted in no preparations having been made for the funeral, and a delay therein, which caused plaintiff to miss the return train which he would otherwise have taken, thereby delaying him in his return to his family about twenty-four hours. Plaintiff was anxious about his family at home, and this anxiety and distress of mind was prolonged for some twenty-four hours by his having to wait at Sabinal for the next day's train, owing to the failure to deliver the message.
"Question. — Was plaintiff entitled to recover damages on account of such prolongation or increase of mental anxiety?"
The failure of the telegraph company to transmit and deliver the message, whereby plaintiff's existing anxiety for his family was protracted, does not give him a right of action against it. Rowell v. W.U. Telegraph Co., 75 Tex. 26; Johnson v. W.U. Telegraph Co., 14 Texas Civ. App. 536[14 Tex. Civ. App. 536]. This case is not distinguishable from Rowell v. Telegraph Co., which was approved by this court in refusing writ of error in Johnson v. same.