of Kentucky in Lee v. W. U. Tel. Co., reported in 130 Ky. 202, 113 S. W. 55. Recoveries were denied in the following cases by our courts: W. U. Tel. Co. v. Wilson, 97 Tex. 22, 75 S. W. 482, in which the relationship was that of uncle and niece; W. U. Tel. Co. v. Coffin, 88 Tex. 94, 30 S. W. 896, in which the relationship was that of brothersin-law; W. U. Tel. Co. v. Gibson (Civ. App.) 39 S. W. 198, where the relationship was that of mother-in-law and son-in-law; Rich v. W. U. Tel. Co. (Civ. App.) 110 S. W. 93, where the relationship was that of son-in-law and father-in-law; W. U. Tel. Co. v. Kanause (Civ. App.) 143 S. W. 189, where the relationship was that of stepfather and stepson. In each and all of those cases no notice was given to the telegraph company at the time the messages were sent of any special affection existing between the plaintiff and the person whose sickness or death was announced in the telegram; the only recovery sought being for such grief as could reasonably have been anticipated from the relationship shown. In the case of the W. U. Tel. Co. v. Coffin, supra, which was a suit for damages for a negligent failure to deliver a telegram announcing the death of plaintiff's brotherin-law, our Supreme Court used the following language:

"The former decisions of this court have settled the following propositions of law applicable to the case:

"1. That the person for whose benefit a telegraphic message is sent, and who is named in the message, or of whose interest therein notice is given to the company at the time, may sue upon it in case of injury from the negligence of the telegraph company.

"2. That the telegraph company is charged with notice of the relationship which actually exists between the parties named, whether disclosed by the terms of the message or not.

"3. That the company receiving the message must take notice of the purposes for which the message was sent as disclosed by the language of the message, and in case of messages relating to serious sickness or death, it must be held to know that the person for whose benefit it is sent has a serious interest in the prompt delivery

of it.

tice and proof of injury. The right of the plaintiff to recover, and the liability of the telegraph company to respond in damages in such cases, depends upon the general rules of law applicable to all classes of breach of contract. | * *

relations alleged to have existed on the part of "In the case under consideration, the tender the plaintiff towards deceased was a special condition of things not known to be usual between brothers-in-law; and in order to make the despecial circumstances, notice must have been. fendant liable for the injury arising out of these given to it when the telegram was delivered for transmission. *

"There being neither proof of notice to the telegraph company of the special circumstances nor of the actual suffering by plaintiff, the judgment was unauthorized by the proof, and the Court of Civil Appeals erred in not reversing it."

The decision last noted was cited with approval in W. U. Tel. Co. v. Wilson, supra. According to the foregoing decision, plaintiff's right to recover for the breach of the defendant's undertaking to place Will Andrews in communication with the plaintiff depends upon the general rules of law applicable to all classes of breach of contract, and does not depend upon the mere question of kinship which affects only the issue of the mental suffering sustained by him and that of notice of the probability of such suffering at the time defendant's agent at Wills Point was requested to put in a call for the plaintiff at Henrietta. According to that rule, if the defendant was negligent, plaintiff was entitled to recover damages for such mental suffering as was reasonably within the contemplation of the defendant as a result of the breach of its contract at the time its agent undertook the service requested by Will

Andrews. Will Andrews testified that he told defendant's agent at Wills Point, at the time he tried to get in communication with plaintiff, that he "wanted to put in a call for John V. Andrews at Henrietta that his sister was dangerously sick, lying at the point of death." There was no evidence of any further notice of probable mental suffering on the part of plaintiff in the event of a failure to receive the information.

at the funeral of the deceased relative.

"5. The mental anguish, whether accompanied by injury to the person or not, is a proper element of actual damages, and when caused by the negligence of the telegraph company in failing to deliver a message, compensation therefor may be recovered by the injured party.

"That husband and wife, parent and child, and brothers and sisters, may recover under the principles before announced is settled by the decisions of this and other courts which have agreed with the decisions made in this state on that subject. To what degree of remote relationship the inference of injury may be extended is not necessary for us to determine at this time, but it is evident that there may be blood relations so far removed that no such presumption could be indulged by the jury. "The right to recover, however, for such injuries cannot, upon principle, be placed upon kinship which affects only the questions of no

grandchild, and if the latter relationship is a sufficient predicate to establish the presumption of mental suffering in case of a failure to deliver a message of this character, no reason is perceived why the same should not be said of the other relation. Notice to the defendant company that Mrs. Stone was a sister of the plaintiff was sufficient to apprise the defendant of probable mental suffering by plaintiff even greater than that which would ordinarily result from the failure of a brother to attend the burial of his half-sister. If, as testified to by plaintiff, his mental suffering resulting from a failure to attend the burial of Mrs. Stone was as great as if she had been his full sister, then the notice which Will Andrews testi

fied he gave to the defendant would be sufficient to embrace the same, and no reason is perceived why, under the decision in the case of W. U. Tel. Co. v. Coffin, supra, damages even to that extent should not be recoverable. For the reasons stated there was no error in the court's refusal to give the requested peremptory instruction for a verdict in favor of the defendant.

of an objection to the refusal of the requested instruction. In other words, the record entirely fails to show that appellant called attention of the trial judge, or of opposing counsel, to this contention at any time; and, under the circumstances, we think that the plaintiff's failure to deny the special pleas in accordance with the statute was waived by the defendant. Of course if the requested

tiff to deny the special pleas as a reason why the same should be given, possibly it might have been sufficient to raise the question, but it was in general terms and read as follows: "You are instructed to bring in a verdict for the defendant in this cause." See T. & P. Ry. Co. v. Tomlinson et al., 169 S. W. 217 (No. 7985, by this court, and not yet officially published).

[5] Two special issues were requested by the defendant which, in general terms, called for all information given to the defendant's agent by Will Andrews at the time he attempted to get in communication with the plaintiff. Of course the only material fact sought was whether or not the defendant's agent was notified of the fact that Will Andrews expected to tell the plaintiff that his sister was lying at the point of death and not expected to live, but the proposed issues called for all the information given, and were therefore too general, and perhaps would have been misleading to the jury.

[6] In addition to a general denial the defendant pleaded in general terms that the plaintiff's failure to receive the call in question was due to the contributory negligence of himself and his agents, and also that plaintiff and his agent or agents were each guilty of contributory negligence in failing to prevent or minimize his damages. Plaintiff filed no pleading in reply to these special pleas by the defendant. Appellant now insists that, by reason of the failure of plaintiff to file a reply to those special defenses in accordance with the act of the Thirty-Third Legislature, amending article 1829 of the Revised Civil Statutes (see Acts 1913, p. 256) the court erred in refusing to peremptorily instruct the jury to return a verdict in favor of the defendant. It does not appear from the record that the defendant called attention to this point upon the trial by requesting that its special pleas mentioned should be taken as confessed, as we think should have been done, if defendant sought to invoke the provisions of the statute mentioned. Besides, it does not appear that this contention was presented to the trial court by way

[7] By the Acts of the Legislature of 1913, page 256, article 1827 of the Revised Statutes has been amended so as to require a petition filed in a suit to state "each fact going to make up such cause of action and other allegations shall be pleaded by separate paragraph and each paragraph numbered consecutively." Complaint is made of the court's action in overruling a special exception, addressed to plaintiff's petition, that divers and sundry facts constituting a part of plaintiff's cause of action were alleged in the same paragraph of the plaintiff's petition contrary to

this statute.

Evidently this statute was passed for the convenience of the defendant the end that the different facts may be adin preparing an answer to the petition to mitted or denied without the necessity of rethe present suit the facts so alleged were peating them. It seems, however, that in specifically and specially answered in the defendant's answer, and hence, if error was committed in the ruling complained of, the same will work no harm or inconvenience to the defendant upon another trial.

Stone was dearer to him than his full sisters [8-10] The testimony of plaintiff that Mrs. we think was improperly admitted, since no notice of such special affection was given to the defendant. The further objection that the proof was at variance with the allegations in the plaintiff's petition, such allegations being that Mrs. Stone was plaintiff's sister, we think is untenable for the reasons already noted. We are of the opinion, further, that there was no merit in defendant's objection to proof of Mrs. Stone's death and burial at Martin's Mill rather than at Wills Point, as alleged in plaintiff's petition; the objection being that the same constituted a material variance.

[11] We are of the opinion that the remarks made by counsel for the plaintiff in his closing argument to the jury, upon which the eleventh assignment of error is predicated, to the effect that the jury should allow such damages as would compensate them for the grief that they would have suffered under the same circumstances, were improper,

under the laws of Oklahoma, where the judgment was recovered, and asked that it be declared exempt from the payment of it in this state, and that appellee be enjoined from any further proceeding to collect and subject it to the payment of their judgment. Appellee demurred to the answer, and the demurrer was sustained, and, upon appellants declining to plead further, judgment was rendered for the full amount of the debt, and, the garnishee having paid the amount due on the policy into court, $950, it was paid to the appellee and the garnishee discharged. Appellants prosecute this appeal to reverse the judgment.

Geo. F. Youmans, of Ft. Smith, for appellants. Kimpel & Daily, of Ft. Smith, for ap

pellee.

KIRBY, J. (after stating the facts as above). [1] Can appellee, a citizen and resident of this state, subject to the payment of his debt, by garnishment, the money due appellants, residents of the state of Oklahoma, from an insurance company, which also does business in this state, for a loss under a fire insurance policy issued in that state upon their homestead and household effects, all of which were exempt from seizure and sale for the payment of the debt in that state, where the judgment upon which this suit is brought was obtained? This proceeding was instituted by a citizen and resident of this state to collect a debt due it from a resident of the state of Oklahoma, and the garnishment was served upon a corporation doing business in this state, and, if it be conceded that the debt due from the garnishee to appellants was exempt from seizure and garn

ishment in the state of Oklahoma, it in no

wise affects the creditor's right to subject the garnished debt to the payment of his judgment here.

[2] The garnishee became indebted to the insured under a policy of insurance upon a loss, for the payment of the amount due thereunder, and could have been sued by the insured, its creditors, in the courts of this state, where it also does business, and it is liable to process of garnishment here, notwithstanding the debt was contracted in another state for as was stated in Stone v.

Drake, 79 Ark. 386, 96 S. W. 197, quoting from Railway v. Parker, 69 Ark. 401, 63 S. W. 996, 86 Am. St. Rep. 205:

"The situs of a debt, for purposes of garnishment, is not only at the domicil of the debtor, but in any state in which the garnishee may be found, provided the law of that state permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the state."

See, also, Railway v. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. Ed. 1144; Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. 625, 49 L. Ed. 1023, 3 Ann. Cas. 1084; L. & N. Ry. Co. v.

Deer, 200 U. S. 176, 26 Sup. Ct. 207, 50 L. Ed. 426; Bristol v. Brent, 38 Utah, 58, 110 Pac. 356; Railway v. Swartz, 53 Tex. Civ. App. 389, 115 S. W. 275.

[3-6] Exemption laws are not a part of the contract and pertain to the remedy, and the law of the forum relative thereto governs. Stone v. Drake, supra; 18 Cyc. 1376. Only residents of the state of Arkansas are entitled to claim the benefit of our exemption laws. article 9, §§ 1, 2, 6, 10, Constitution of 1874; sections 3882, 3903-3905, Kirby's Digest. The appellants are not residents of the state of Arkansas but of the state of Oklahoma, and cannot claim the benefit of our laws, being nonresidents, nor can they avail here of the exemption laws of Oklahoma, which have no extraterritorial effect. Nor do we agree with appellants' contention that this proceeding is such an attempt to evade the exemption laws of the debtor's domicile as will be relieved against. It is only when a creditor attempts to evade the exemption laws of his own state by resort to attachment proceedings in the court of another state against the property of a debtor who is a resident of the state of the creditor's domicile that he will be enjoined by the courts of the latter state from prosecuting his suit in the foreign jurisdiction. Griffith v. Langsdale, 53 Ark. 73, 13 S. W. 733, 22 Am. St. Rep. 182; Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; Greer v. Cook, 88 Ark. 95, 113 S. W. 1009, 16 Ann. Cas. 671. Oklahoma and had resorted to the courts of If appellee was a resident of the state of this state to collect his claim in evasion of the laws of his own and his debtor's residence, our court would not lend its aid; but this proceeding is by a resident of this state in the courts thereof, to collect a claim against a nonresident debtor by garnishment, subjecting to its payment money due to such nonresident in the hands of the garnishee within this jurisdiction, and cannot be said to be an attempt to evade the exemption laws of another state, since a citizen of every state has a right to proceed under the forms of law of his own state in the collection of his claims under the method provided by the

laws thereof.