#### WHITTEN v. TELEGRAPH CO.

(Filed May 16, 1906).

Telegraphs — Production of Message — Evidence—Hearsay— Damages.

1. In an action for damages for failure to promptly deliver a telegram, when the plaintiff proposed to prove the contents of the telegram by parol and the defendant objected, the court had the right to order the production of the telegram, which defendant’s counsel admitted he then had in his possession.

2. The court has power to order the production of a paper, which contains evidence pertinent to the issue and which is in the possession or control of the adverse party.

3. In an action for damages for mental anguish in failing to promptly deliver a telegram, announcing the illness of plaintiff’s father, it was not competent for the plaintiff to testify that when he arrived at his home he was told that his father, who had just died, had inquired for him and expressed his desire to see him before he died, as this was hearsay, but if the person who gave the plaintiff the information had been introduced as a witness and testified as to what the father had said and as to his conversation with the plaintiff in regard to it, the evidence would have been competent on the question of damages.

*362AotioN by S. E. Whitten against Western Union Telegraph Co., heard by Judge O. U. Allen and a jury, at the January Term, 1906, of the Superior Court of McDowell.

On October 18, 1904, at 7:30 p. m., the plaintiffs brother delivered to'the defendant at Greenville, Tenn., a telegram addressed to the plaintiff at Marion, N. C., which' read as follows: “Father cannot last much longer; think it best to come.” The defendant was requested to rush the message and there was evidence tending to show that, if the defendant had not handled the message negligently, it would have been received by the plaintiff in time for him to have taken the next train out from Marion and to have reached the bedside of his father before he died. The negligence of the defendant was denied in the 'answer, but admitted on the trial. Only two questions need be stated: 1. The plaintiff proposed to prove the contents of the telegram by parol. The defendant objected, whereupon the plaintiff asked for a rule on the defendant’s counsel, who admitted he then had the original in his possession, to produce it. The defendant’s counsel agreed to produce it, if the/ plaintiff would introduce another paper which the defendant’s counsel then had in his hand. This the plaintiff refused to do, and the court having intimated that the rule would be issued and the defendant be given time to produce the telegram, the defendant’s counsel submitted to the ruling and excepted, at the same time stating that he would waive notice and produce the paper, which he did. 2. There was evidence tending to show that the plaintiff’s father knew the plaintiff had been telegraphed to come, and more than once he had expressed his anxiety to see and talk with him bef ore he died. The plaintiff testified to the mental suffering he had endured, -when he arrived at his home in Greenville and was told that his father, who had just died, had called for him before his death, and he found that by reason of the negligence of the defendant, he was deprived of the privilege of seeing his father. This evidence was ad*363mitted over tbe objection of tbe defendant and an exception noted. Tbe following are tbe issues witb tbe answers thereto: 1. Was tbe defendant guilty of negligence as alleged in tbe complaint? Yes. 2. Did tbe plaintiff contribute to bis own injury? No. 3. Wbat damage, if any, bas tbe plaintiff sustained on account of mental anguish alleged in tbe complaint ? $500. There were certain instructions prayed by tbe defendant as to tbe first issue, and they were given, and others, as to tbe second issue, which were substantially given. Judgment was entered upon tbe verdict and the defendant appealed.

Sinclair & Johnson and W. T. Morgan for the plaintiff.

F. H. Busbee & Son, W. B. Whitson and G. H. Ferons for the defendant.

Walker, J.,

after stating tbe case: If there ever was any merit in tbe first exception there is none now, as tbe negligence of tbe defendant was admitted, after tbe objection to tbe ruling was made, and it was agreed that tbe first issue should be answered ‘yes.’ But if there bad been no such admission, tbe exception could not be sustained. It is too clear for discussion that tbe court bad tbe right to order tbe production of tbe telegram and that it exercised its power in that respect reasonably and witb moderation. Tbe power thus to order the production of a paper, which contains evidence pertinent to tbe issue and which is in tbe possession or control of tbe adverse party, bas long been recognized to exist in courts of common law or equitable jurisdiction. It is essential to tbe due administration of justice and there is nothing in it prejudicial to tbe rights of tbe other party under tbe law. McKelvey on Evidence, 350. It is expressly given by statute. Code, section 1373; Eevisal, section 1657. See also Clark’s Code, section 578, and notes; McDonald v. Carson, 95 N. C., 377; McLeod v. Bullard, 84 N. C., 515. As was said in tbe *364latter dase, “Tbe defendants bad ample notice of tbe plaintiff’s motion, and indeed appear to have come prepared to respond to it.”

Tbe second exception is well taken. It was not competent for tbe plaintiff to testify as to wbat be was told, when he arrived at bis borne, bis father bad said. This was nothing, but hearsay. It was argued that it was a part of tbe res gestae, anu was corroborative of tbe evidence that bis father knew that tbe plaintiff bad been notified to come borne and bad expressed himself as anxious to see tbe plaintiff. We are unable to see bow it is competent on either ground thus stated. If tbe person who gave tbe plaintiff tbe information had been introduced as a witness and testified as to wbat bad occurred, that is, as to wbat tbe father bad said and as to bis conversation with tbe plaintiff in regard to it, tbe evidence would have been competent on tbe question of damages, especially if it bad been shown that tbe mental anguish of tbe plaintiff bad been increased by reason thereof. Such a communication to tbe plaintiff must in some degree have aggravated bis suffering. He was necessarily pained to discover, 'when be arrived in Greenville, that bis father bad died without bis having bad tbe consolation of seeing him. How much more would his disappointment and distress be intensified by the knowledge that bis dying father bad inquired for him and expressed a desire to see him before tbe end bad come, and was filled with anxiety lest be should arrive too late. It tended to show tbe existence of deep paternal affection and also tbe tender and close relation subsisting between father and son, and consequently tbe natural effect that tbe knowledge of tbe inquiry, which the father bad made for him, would have upon tbe son. It is not unreasonable to suppose that the disappointment of having failed to reach bis home, under such circumstances, until it was too late to see bis father alive and to receive bis final blessing and bis parting message, which be could well infer from wbat be bad beard, awaited *365him, added something to the poignancy of his sorrow, and if so he is entitled to have it considered. The defendant must have contemplated from the very nature of the message that a failure to deliver it would cause mental anguish, and the damage proposed to be shown by the evidence is such as may fairly be considered to be within the range of those damages contemplated by the parties, as it should have been reasonably expected to result from the defendant’s wrong in failing to transmit and deliver the message in proper time. Such additional anguish as the plaintiff may have suffered by hearing what' his father said, is not unusual in such cases, and cannot be regarded as of such an exceptional and extraordinary nature as to require that it be brought specially to the attention of the company. We find that the question has been decided in Telegraph Co. v. Evans, 1 Texas Civ. App., 299, in which case the court says: “This suit was instituted to recover damages for the mental anguish claimed to have been caused appellee’s wife by her failure to see her son before his death, and we are not prepared to say that the jury would not be authorized to conclude that this anguish would be increased by the knowledge that her son wished to see her and was unable to do so. 'In such case the damage would be for the injury thereby caused the wife, and not for any damage that might have been suffered by the son.” The case of Tel. Co. v. Lydon, 82 Texas, 366, indirectly furnishes support for our ruling. “While juries (says the court in that case) in the absence of any evidence on the subject may act upon their own knowledge of the affection subsisting between a mother and her son, still the admission of evidence upon the subject may be proper, and we cannot say that proof of a special regard, felt and shown by a mother for one of her children, may not be properly considered by the jury, in connection with other circumstances in estimating the feelings of the child toward the parent.” If it be competent to show the actual state of feeling between parent and child, why is it *366not equally competent to prove a statement of the father’s expression of his anxiety to see his son, which was brought to the knowledge of the latter, as tending to show the father’s affection for the plaintiff and the naturally increased disappointment of the plaintiff that he had, by the negligence of the defendant, been unable to gratify his father’s dying wish ? The greater the affection existing between them, the greater the anguish of the one when deprived of the consolation which comes from personal communion with the other in the supreme moment of his death. A question somewhat similar to this was decided in Bright v. Tel. Co., 132 N. C., 317, where we held that in order to show the existence of mental anguish, it was competent to prove the close relation of the parties concerned, such as that the one stood in loco 'parentis to the other, and further, and what is more to the point in this case, that the person thus standing in that relation to the plaintiff, whose husband had just died, would have responded to the message, if it had been delivered, and gone to her succor and as far as he could assuaged her grief by his presence and sympathy. The cases cited by the defendant’s counsel seem to have been decided upon grounds quite distinct from those which should exclude the evidence because of irrelevancy, and the cases we have cited from the same State are much more to the point. We have considered the relevancy of the evidence, if properly presented to the court, as it may and no doubt will become a question in the case at the next trial. The defendant is entitled to another jury as to the third issue, for it was not competent to prove what the father said, by hearsay.

New Trial.