(after stating the facts.) This is the second appeal in this case. Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109. But the questions settled on the former appeal are entirely different from those involved here.
First. We find-no error in the charge of the court. The instructions given at the request of appellee and those given at the request of appellant fairly presented the questions involved for the determination of the jury. It was a question for the jury, under the evidence, which we have fully set forth in the statement, as to whether or not appellant exercised ordinary care in delivering the message to appellee. The court properly instructed the jury that the fact that appellee lived beyond the limits of the town at the time the message was received by appellant at 'Nashville could not avail appellant as a defense, provided appellant by the exercise of ordinary diligence could have delivered the message to the sendee within its delivery limits, i. e., the corporate limits of the town of Nashville. Likewise, that the mistake in the initials of appellee would qot avail as a defense, unless the failure to deliver to appellee was caused by such mistake, or unless such mistake contributed to the failure to deliver. These were questions for the jury. They were properly submitted, and there wa.s ample evidence to support the verdict.
There was no error in refusing the requests for instructions numbered 1, 2 and 4 asked by appellant. The operator of appellant at Nashville testified that he did “not think the mistake in the initial was the cause of the non-delivery.” There was no evidence to the contrary. The requests were abstract. Moreover, the questions presented by the requests were covered by other instructions given at appellant’s request. The court gave an instruction as follows: “If you find from the evidence that the negligence of the sender or of the Western Union Telegraph Company in getting the initials wrong caused or in any way, contributed to cause the failure to deliver, so that but for the co-operating or concurring fault of either the sender or the Western Union Telegraph Company the message would have been delivered, your verdict must be for the defendant.” This and several others of similar purport compassed the purpose sought by the refused requests.
Instruction numbered fifteen was not applicable to any facts in proof, and if of any effect it could have been of no other than to confuse and mislead the jury. The question of unlawfully and wilfully revealing the contents of a private telegram (Kirby’s Digest, § 2059) was not in the case.
Second. When witness Carter was asked if a certain question was not asked him on a former trial, the court remarked that the testimony was incompetent, but he “would let it go.” This was not error. The testimony was really incompetent, for while it was proper to lay the foundation for the impeachment of the witness by asking if he did not testify to a certain state, of facts at the former trial, there is nothing to show that such was the purposé of the interrogation, and the question was really improper, and the testimony incompetent. Although incompetent, the court permitted the question and answer, and appellant was not prejudiced.
We find no prejudicial error in the various assignments of error relating to the ruling of the court in admitting testimony. We have carefully considered these, but it would unnecesarily extend this opinion to discuss them in detail.
Third. The court erred in rendering judgment for $500 and interest thereon at 6 per cent, per annum from September 30, 1903. The judgment should have been for $500. This amount covered the entire damage which the jury found that appellee had sustained. The clerk of this court will ascertain the amount of the excessive interest, and deduct it, entering judgment here for the sum of $500 and-interest at 6 per cent, per annum from the date of the rendition of the judgment in the lower court, and judgment in favor of appellant for costs of this appeal.
Fourth. The allegation in the complaint that appellee “could and would have been present to offer to his bereaved daughter such comfort and consolation as none but a father can give under such trying ordeals,” did not form the basis for an element of damages in the case. Under the proof, and the instruction of the court on the measure of damages in instruction numbered five, the above allegation was eliminated.
Fifth. The verdict was not excessive.
The judgment will be modified in the manner indicated, and affirmed.