#### BOWERS v. TELEGRAPH CO.

(Filed May 24, 1904).

TELEGRAPHS — Mental Anguish.

A person cannot recover damages for mental anguish hy reason of a telegraph company delaying the delivery of a message relating to business, though mental anguish was suffered by the sender occasioned by the misapprehension as to the meaning of the message.

ActioN by DeWitt Bowers against the Western Union Telegraph Company, beard by Judge G. M. Goohe and a jury, at January Term, 1904, of the Superior Court of Dueham; County. Erom a judgment for the plaintiff the defendant appealed.

J. C. Biggs and Boone & Reade, for the plaintiff.

F. H. Busbee & Son, for the defendant.

Clark, C. J.

The plaintiff’s mother, Lucy Bowers, sent him the following message: “Come at once. Lucy Bowers.” This was given to the telegraph operator at Apex, N. C., soon after 8 A. M., and was delayed in transmission so that it was not delivered to the plaintiff at Durham, N. C., till 11.50 A. M., and after the east-bound train had passed Durham at 9.40 A. M. by which he might have gone to his mother. He left on the afternoon train, but that train not making connection at Cary the plaintiff got off at Morris-ville and walked nine miles to his mother’s. His mother had been unwell but was not sick enough to have a doctor, and this message was sent not because of illness but because she wished to see her son on business.

The defendant was derelict in taking nearly four hours to transmit a message from Apex to Durham, and, nothing else appearing, the sender might recover back, if she de*505manded and was refused, tbe twenty-five cents wbicb was paid by ber to secure its prompt transmission, for wbicb purpose telegraph companies are granted charters to serve tbe public convenience. Kennon v. Telegraph Co., 126 N. C., 232. But we see no ground to authorize a recovery by tbe plaintiff for mental anguish. Ilis mother was not dead nor at tbe point of death. He knew that, because ber name was signed to tbe dispatch. It was bis own misapprehension wbicb caused him any uneasiness, and not tbe negligence and delay of tbe defendant. He was not deprived by such delay of tbe opportunity of seeing bis mother, who indeed is still alive. Mental anguish is as real as physical, and recovery in proper cases is allowed of just compensation when anguish, whether physical or mental, is caused by tbe negligence, default or wrongful act of another. Tbe difficulty of measuring compensation does not bar a recovery for physical anguish nor when tbe anguish is mental. But if tbe plaintiff suffered any mental anguish in this case it was not caused by tbe negligence of tbe defendant. In refusing to so instruct tbe jury at tbe request of tbe defendant there was error.

Tbe learned counsel for tbe defendant informs us that more actions for mental anguish are brought in this State than in any other except Texas. This is not in tbe record, but, if correct, tbe courts have cause to complain of tbe additional burden; but counsel certainly do not lose anything thereby and are in nowise to be held responsible for it. Tbe defendant is responsible for any loss in such litigation, for it can effectually prevent recovery in any action by tbe discharge of its duty in tbe prompt delivery of telegrams, especially of those whose tenor indicates that either mental anguish or pecuniary loss will be tbe probable result of a delay in transmission or delivery.

Montgomery, Walker and OonNor, JJ., concur in result.