Morrow v. Western Union Telegraph Co.

CHIEF JUSTICIE HAZELRIGG delivered the opinion of the court. TMs action was brought by J. T. Morrow and his wife "for damages' for mental anguish growing out of a failure of appellant company to- deliver promptly a telegraphic message to the husband, whereby the wife was prevented from attending the- funeral and burial of her. grandmother. On motion requiring the plaintiff to elect which cause of action they would prosecute — that of the wife or of the husband1 — they elected to proceed on behalf of the wife and the' case was so heard'. Upon the conclusion of the plaintiff’s testimony, a peremptory instruction for the defendant was- given, and, without motion for a new trial, this appeal is prosecuted. The pleadings authorize the judgment, and the motion for the peremptory instruction furnished merely a test of the law arising on the facts as disclosed by the proof. ."We think, under the facts shown, the law is against the [519] plaintiff, and the instruction was properly given. The' wife wasi not a party to the transaction or message, and there was neither averment nor proof that the message was sent with notice to the company, for the purpose of bringing her to the funeral and. burial of her grandmother. The other legal questions attempted to be raised on the briefs growing- out of alleged errors on the trial can not be considered, for want of a motion, for a new trial. Judgment affirmed.