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.