Lead Opinion

Wood, J.,

(after stating the facts.) We will consider the questions in the order presented in the motion for new trial.

1. It was not error to exclude the offered testimony of the messenger boy that he was told by Hennessy that Sockwell was stopping at the Hotel Main. It was not shown that it was the duty of the boy in charge of the “hotel ’phone switch-board” to give information of the persons stopping at the hotel. Even had it been shown that appellee was at the hotel, the offered evidence did not tend to prove that it was the duty of the ’phone boy to receive messages sent to the patrons of the hotel, or to give any information concerning them. The offered testimony was pure hearsay.

2. The testimony of appellee that his father had given him forty acres of land, and that he had not visited his father more because he was financially unable to do so, was not prejudicial error. The connection in which this evidence was elicited shows that its purpose was not to show appellee’s poverty or financial condition, as appellant contends, but to show the state of feeling, the affection, that existed between father and son.

3. There was no error in refusing to allow the witness Stannard to testify as to the proper or usual method of attempting to find an addressee when no further address was given than the name and town. This witness testified “that there was a city directory in appellant’s office in Fort Smith, much worn by use, which contained the name and address of plaintiff.” It could not be said, in view of this evidence, that the name and address of appellee were unknown to appellant. It shows that his name and address were at hand in the directory. But, instead of consulting this, appellant proposed to show what was the usual custom, and that it followed that custom. In view of the above evidence, no matter if there was such a custom as appellant offered to prove, it was palpable negligence on the part of appellant to follow the custom, instead of taking the positive information in its possession. Any evidence which tended to show that appellant failed to consult and follow this certain information, but instead resorted to some other method less definite, would necessarily show negligence on the part of appellant.

4. In view of the fact that appellant showed that it had the name and address of appellee at the time the message to him was received at Fort Smith, it was not-error for the court to refuse the prayers of appellant to have the question submitted to the jury as to whether the sender of the telegram had given such correct address as would enable .appellant by the exercise of ordinary care to deliver the message. It follows that prayers of appellant numbered 1, 2, 3 and 4 on the subject of the negligence of the sender and prayers numbered 5 and 6 on the subject of the custom of delivering telegrams were properly refused. It follows also that prayers numbered 2 and 3 given at appellee’s request were more favorable to appellant than was warranted by the undisputed evidence. Appellant can not therefore complain of these. Appellant having the name and the correct address of the addressee of the message, as its own evidence shows, was in no position to claim that appellee was negligent in not giving a more definite address. Appellant failed to exercise ordinary care to ascertain where the addressee could be found, which it might have easily done by consulting the city directory in its hands.

5. Appellant contends that the first instruction given at the instance of appellee is erroneous in ‘assuming that plaintiff had a known residence at Fort Smith at the time of this occurrence.” The instructions left to the jury to determine from a preponderance of the evidence as to whether or not appellee had a known residence in the city of Fort Smith, which was really more favorable to appellant than it had the right to ask on this question, for the undisputed evidence of appellee is that in April, 1905, “he came to Fort Smith and entered the service of the street car company, with whom he has ever since remained.”

Appellant also contends that the instructions assume that appellee had suffered some mental anguish on account of his inability to be with his father, when that was a question for the jury. The evidence was that the relations between appellee and his father “were those of affectionate father and son.” It was not prejudicial error to assume that an affectionate son would suffer mental anguish by being deprived of the opportunity of being with his father in his last illness.

The contention here that there was no evidence to show when appellee’s father died, and therefore no evidence to show that appellee would or could have reached him before his death had the message been promptly delivered, is borne out by the record. But one of the grounds for which a verdict may be vacated and a new trial granted is as follows: “The verdict is not sustained by sufficient evidence.” Sec. 6215, Kirby’s Digest, subdiv. “sixth.” The motion for new trial contains no such ground. Had the attention of the trial court been called specifically to this in the motion for new trial, we would then be in position to say that the court had erred in overruling the. motion. But on review here we reverse only for errors in the rulings of the lower court. Therefore it must be held that the failure of the appellant in its motion for a new trial to object to the sufficiency of the evidence to support the verdict was a ■ waiver of such ground there and here. The trial court was not given the opportunity to set aside the verdict on the ground that there was no evidence to sustain it. Moving for new trial waives all exceptions taken at the trial and not incorporated in the motion. 1 Crawford’s Digest, “Appeal and Errors,” p. 122, IVb, where the cases are collated. Therefore appellant cannot succeed upon his contention, raised here for the first time, that the evidence does not sustain the verdict.

Opinion delivered October 18, 1909.

Finding no reversible error, the judgment is affirmed.

Rehearing

ON REHEARING.

Wood, J.,

(dissenting). Appellee’s mental anguish, according to the allegations of his complaint, grew out of his “inability to be with his father prior to and at the time of his death.” There is no evidence to show when appellee’s father died. There is no evidence to warrant the finding that if the telegram had been delivered promptly to appellee he could have reached his father’s bedside prior to his death. In the absence of this evidence, appellee fails to prove the cause of action alleged.

While the motion for new trial does not assign as error that there was .no evidence to support the verdict, the objection to the first instruction and the exception to the ruling of the court in giving it, carried forward into the motion for new trial, raises the question here. For it was error to submit to the jury the question as to whether or not “on account of the delay in delivering the said message plaintiff was precluded from being with his father in his last illness and at his death,” when there was no evidence to show that appellee could have reached his father’s bedside before his death, had the message been promptly delivered. Instructions must be based upon the evidence. It is prejudicial to submit abstract questions that are material to the issue.

I have reached the conclusion on reconsideration that the above is the correct view to take of the case, and that the same should be reversed for the error in giving instruction number one. St. Louis S. W. Ry. Co. v. Jackson, ante p. 14, and authorities there cited.

Battle, J. I concur.