#### SPARKMAN v. WESTERN UNION TELEGRAPH COMPANY.

(Filed June 19, 1902.)

TELEGRAPHS — Mental Anguish — Damages.

Where a person, in response to a telegram announcing the death of his brother, in a distant state, sends a telegram inquiring as to place of burial, the failure to deliver the telegram does not make the telegraph company liable in compensatory damages, the message being intended only to relieve mental anxiety then existing in the mind of the sender.

Douglas, J., dissenting.

ActioN by S. B. Sparkmau against the Western Union Telegraph Company, heard by Judge Walter H. Neal and a jury, at January Term, 1901, of the Superior Court of Due-ham County. From a judgment for the plaintiff, the defendant appealed.

Guthrie & Guthrie, for the plaintiff.

F. H. Busbee, for the defendant.

Montgomery, J.

The plaintiff, who resided in Durham, N. C., received, on the 11th March, 1901, at 2:10 p. m., a telegram, by the defendant’s system, in these words: “Little Bock, Ark., March 11, 1901. S. B. Sparkman, 216 Glenn street, Durham, N. C. — Your brother, E. Sparkman, died on the 10th. S. Johnson.” About two hours later of the same day, the plaintiff delivered to the defendant, at its office in Durham, a message in the following words: “Durham, N. C., March 11, 1901. S'. Johnson, Little Eock, Ark. *448Shall we look for Mm, or what are you going to do ? S. B. Sparkman.”

There was a failure on- the part'of the defendant to deliver the telegram to Johnson, and this action was brought by the plaintiff to recover damages for alleged mental anguish. The following is a copy of that part of the complaint which sets out the nature of the claim:

“That if the defendant had discharged its aforesaid duty and obligation to plaintiff, and complied with its aforesaid contract, as it should have done, the aforesaid message from plaintiff could and would have been transmitted and delivered to said S. Johnson at Little Rock, Ark., within a few hours after its acceptance for delivery at Durham, N. C., and the plaintiff would, in that event, have been relieved of much anxiety as to whether or not his brother’s remains would be buried in Little Rock, Ark., or sent to- Durham, N. C., for burial, and whether or not it was necessary to- make arrangements for his brother’s burial in Durham, N. C„ and plaintiff could have also- determined (as he contemplated doing) whether or not to- take a trip to Little Rock, Ark., to attend his brother’s funeral; but, owing to- the aforesaid negligence and want of due care, and failure on the part of the defendant to comply with its aforesaid contract and to- discharge its aforesaid duty, as hereinbefore alleged, the aforesaid message from plaintiff to- said S. Johnson was not transmitted and delivered to said Johnson at all, and no response by telegraph was ever received by plaintiff from said S. Johnson to plaintiff’s inquiry contained in said telegram, and the plaintiff was thus left without the information he sought to obtain, and without the consolation and comfort such information would have been to him, if he could have obtained it, in that sad and distressful hour; that the information sought for concerning the funeral arrangements and disposition of the remains' of his deceased brother, if the same could have been obtained *449as aforesaid, would bave1 been of great comfort to tbe plaintiff, and would bave relieved bim of nrucb anxiety on that account ; that by reason of tbe aforesaid negligence, breach of duty and violation of contract on tbe part of tbe defendant, tbe plaintiff bas suffered great mental pain, anguish and anxiety, his feelings bave been greatly outraged, and plaintiff bas been greatly wronged and damaged, to-wit, in tbe sum of $1,999.99.”

In all tbe decisions of this Court in which tbe doctrine of mental anguish bas been involved, from Young v. Tel. Co., 107 N. C., 370, 22 Am. St. Rep., 883, 9 L. R. A., 669, down to and including Darlington v. Tel. Co., 127 N. C., 448, it bas been held that in addition to nominal damages for tbe breach on tbe part of a telegraph company to transmit a message in good time, tbe damages ought not to be increased by any circumstances, which could not readily bave been anticipated as probable from tbe language of the written message1 — 1 the rule taken from Shear, and Red. Neg., Sec. 605. Now, if that rule is to be applied here’ — to' tbe language of tbe telegram to Johnson — there is nothing in that language which could lead tbe defendant to believe that mental anguish would result to tbe plaintiff by reason of a failure to transmit the same. Johnson bad answered on tbe 11th, late in tbe day by a telegram received through tbe defendant to tbe plaintiff, that plaintiff’s brother bad died on tbe day before in Little Rock, Arkansas, and tbe plaintiff’s dispatch to Johnson was-a simple inquiry as to tbe place of burial of bis brother— whether in Durham or Little Rock. Surely tbe distance be^ tween Durham and Little Rook, in connection with the brother’s death the day before tbe telegram was delivered to tbe defendant, would preclude any idea of a desire or purpose on tbe part of tbe plaintiff to go to Little Rock to attend tbe funeral services. There was no intimation in tbe telegram? *450that embalmment would be expected, that be might attend the burial.

The mental anguish which the plaintiff alleges that he suf: fered was the remaining in doubt and uncertainty as to where the burial would take place, because of defendant’s failure to deliver his message to Johnson, and to hear from Johnson. He does not claim that he suffered mental anguish from the failure to deliver the telegram to Johnson, simply. His uncertainty arose from not hearing from Johnson. The rule in such a case is well settled in Akard v. Tel. Co., 44 S. W., 538, and we adopt it. It is: “A telegraph company is 'not to be held liable in compensatory damages for its failure to forward or deliver a message intended to relieve mental anxiety then existing in the mind of the sender.”

Rowell v. Tel. Co., 75 Texas, 26, seems to be a leading case. The headnote is: “Anxiety caused by the failure of a telegraph company to' deliver a message conveying information -of the improved condition of a sick relative furnishes no .ground for recovery against the telegraph company on ac= ■count, of its negligence. Such mental anxiety can not of it•self constitute an element of damage.” The Court said: '“The damage here complained of was the mere continued anxiety .caused by the failure promptly to deliver the message. 'Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most ■eases, but the cases are rare in which such emotion can be held an element of damages resulting from the breach. Eon injury to feelings in such cases, the Courts can fix m> redress. Any other rule would result in intolerable litigation.”

We think, in this case, the Court should have given the defendant’s prayers for instruction: “That if you believe the evidence in this case, you can only give to1 the plaintiff as damages fifty-seven cents, amount charged by defendant for message, and your answer to the issue will be fifty-seven *451cents. Tbe jury can not in this case assess any damages for mental anguish.”

Error.

Douglas, J., dissents.