
    Case 82 — ACTION FOR DAMAGES FOR DELAY IN DELIVERING TELEGRAM
    Jan. 12.
    Morrow, Etc. v. Western Union Telegraph Co.
    APPEAL FROM SHELBY CIRCUIT COURT.
    Parties — 'Action for Failure to Deliver Telegram. — A wife can inot recover against a telegraph company for mental suffering caused- by failure to deliver a tel-egr.am to her husband announcing the death of the wife’s grandmother, whereby the wife was prevented from attending the funeral, no notice -appearing that the purpose of the telegram was to bring her to the funeral.
    G. G. GILBERT for appellants.
    1. By section 199 of the new Constitution telegraph companies are made common carriers. .See also Barks v. Alta, &c., Tel. Co., 13 Cal., 422; 73 Am. .Dec., '589.
    2. The case of Western Union Tel. Co. v. Brown, 71 Tex., 723, holding that relationship of the decedent to the person for whom the message was intended 'Should be disclosed on the face of the message, has been repeatedly overruled. W. U. Tel. Co. v. Carter, 85 Tex., -580. .
    3. On recovery for mental suffering. Chapman v. W. U. Tel. Col, 90 Ky., 265.
    4. The receiver or person to whom the message is addressed may sue for damages in this country, although the rule is different in England. 2d Am. & Eng. Corp. Cas., 185; 7 Am. St. Rep., 530. Any person for whose use a contract is made may sue for a breach of contract although he is not a party to it. 93 U. S. Reps., 143; 59 Am. Rep., 541; 36 Kas., 246.
    5. The message in this case showed -on its face the importance of its immediate delivery. 21 Am. & Eng. Ry. Case, 100.
    6. On recovery by the wife where the message was sent to the husband. 20 Am. & Eng. Corp. Cas., ©94; Young v. W. U. Tel. Co., 107 N. C., 370; 3-5 Am. & Eng. Corp. Cas., 60.
    7. The statements of the operator are admissible against the company. W. U. Tel. Co. v. Bennett, 1 Tex. Civil App., 558.
    8. The affection entertained for 'the deceased by the appellant is ■ a proper 'subject of inquiry. W. U. Tel. Co. v. Lyden, 82 Tex., 364.
    
      RICHARDS, WEISSiINGER & BASKIN fob appellee.
    1. 'No motion for a new trial. Helm v. Coffey, 80 Ky., 176; Harper v. Harper, 10 Bush, 451; Western Assurance Co. v. Rector, 8-5 Ky., 294; Ruhrwein v. -Gebhart, 90 Ky., 147.
    2. The court properly sustained defendant’s motion to cause plaintiff to elect which of the -two causes of action she would prosecute •and pla-intiff elected to prosecute in favor of the wife and so ■much -of the petition as seeks to recover for the husband was stricken -out.
    3. The peremptory instruction was proper. Mrs. Morrow is not named in the dispatch and there wa-s no notice to the company that it was important to her that the dispatch should be immediately' delivered. The doctrine in the case of Chapman v. W. U. Tel. Co. (90 Ky., 266), that the receiver may sue upon the ground of ■contract has not been carried any farther. Thompson on Elec., sec. ■-; Wood v. W. U. Tel. Co., 57 Fed. Rep., 471.
    4. The court should establish a 'rule that suit for grief should be ■ confined to the first degree o-f relationship.
    This case was argued orally by A. E. RICHARDS and WM. WM. LINDSAY for appellee.
   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 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.  