#### M. O. GEROCK et al. v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 4 March, 1908).

1. Appeal and Error — Second Appeal — Rehearing of First Appeal.

Upon a second appeal in the same cause of action, the appellant may not have a rehearing of matters disposed of in the first appeal.

2. Telegraph Companies — Negligence—-Evidence—Principal and Agent — Prior Negligence — Nominal Damages.

When there is evidence of negligence of a telegraph company prior to the time of the delivery of a telegram to the party in whose care it was sent, it is sufficient to support a verdict of at least nominal damages.

3. Telegraph Companies — Negligence — Damages — Instructions — Principal and Agent — Knowledge of Agent.

In an action to recover for the negligent failure of a telegraph company to deliver a telegram from a wife to her husband informing him of, her sickness, and in consequence of which she was caused mental anguish by his failure to come or to reply, it was not error in the court below to refuse to instruct the jury under the facts that there could be no recovery for mental suffering endured by the wife, for that at the time in question the husband telegraphed to his wife’s father inquiring about her condition, of which the father neglected to inform her.

*24. Principal and Agent — Evidence—Agency—Principal—Imputed Knowledge.

The plaintiff is not imputed with the undisclosed knowledge of any fact or circumstance bearing upon matters in avoidance of the damages claimed, communicated to her father, in the absence of evidence of his agency.

5. Telegraph Companies — Messages—Care of Another — Delivery.

A delivery of a telegram to the person in whose care the sendee is addressed is, in law, a delivery to the sendee.

6. Telegraph Companies — Negligence—Evidence—Measure of Damages — Contributory Negligence — Proximate Cause.

When the evidence tends to show that the defendant telegraph company negligently delayed the delivery of a message to the one in whose care it was sent, relating to the sickness of plaintiff’s wife, and requesting him to come to her, so that the addressee lost an opportunity of sooner being with her, and there was a further delay on the part of the one in whose care the message was sent in delivering it to the addressee, causing plaintiff to miss the next opportunity of going, the only question presented is upon the measure of damages, not one of contributory negligence or proximate cause; and it was not error in the court below to refuse to instruct the jury that plaintiff could not recover.

7. Telegraph Companies — Telegram, Care of Another — Notice of Importance.

It is not ordinarily the duty of a telegraph company to notify the one in whose care a telegram is sent of its importance.

8. Telegraph. Companies — Prior Negligence — Care of Another — Notice of Importance —Question for Jury.

When prior negligence on the part of the telegraph company is established, which may cause an injury, it is the duty of the telegraph company to notify the one in whose care it is sent of its importance, or it should be left as an open question to the jury whether the employee acted as a man of ordinary prudence would have acted in not doing so, qucere.

Civil actioN, tried before W. R. Allen, Jand a jury, at November Term, 1907, of the Superior Court of Beetie County.

Tbis action was brought to recover damages for negligently delaying to deliver a telegram which was sent from Ahoskie, N. C., to Maysville, N. 0., by the feme plaintiff, Mrs. Gerock, *3in the name of her father and agent, J. A. Copeland, to her husband, M. 0. Gerock, in care of his brother, C. 0. Gerock. The latter is a barber in Maysville, and his shop is about 150 yards from the defendant’s office. His home was about three miles from Maysville, in the country, and his brother was visiting him at his home -when the telegram was sent.

The court submitted the following issues to the jury:

“1. Did defendant negligently delay the delivery of the telegram, as alleged in the complaint?” Answer: “Yes.”

“2. Was plaintiff injured thereby ?” Answer: “Yes.”

“3. What damage is the plaintiff entitled to recover ?” Answer : “Six hundred dollars.”

The evidence tended to show that the message was received at Maysville at 4:21 P. M. on Thursday, 2 February, 1905. C. O. Gerock, was at his place of business in Maysville until 5 :42 P. M. on that day. The defendant’s agent did not deliver the telegram until 9 :30' A. M. on Friday, 3 February, 1905. It was in a sealed envelope. The agent did not inform C. 0. Gerock of the importance of the message, but said to him at the time he delivered it: “Here is a telegram I received yesterday afternoon, in your care, for M. 0. Gerock.” If C. 0. Gerock had known the nature of the message he would have sent it at once to his brother when he received it. He did not deliver it to him until 6 o’clock, 3 February, 1905, when he returned to his home at the usual hour. He would have given it to his brother Thursday evening if it had been received that evening from the defendant’s agent. 0. 0. Gerock went to Maysville as early as Y o’clock on Friday morning, but did not receive the message until 9 :30 o’clock. The message was in the following words: “India is sick with grippe; not dangerous; wants you to come,” and was dated 2 February, 1905. India is the wife of M. O. Gerock. The train leaves Maysville at 4:22 P. M. for Ahoskie and arrives there at 10:36 A. M. the next day. If 0. 0. Gerock had delivered the message to his brother, M. 0. Gerock, at any *4time before 12 o’clock Friday, the latter could have reached Ahoskie by 10:36 A. M. Saturday. Tie left Maysville Saturday at 4:22 P. M. and did not reach Ahoskie until Sunday afternoon about 5 o’clock. If he had received the message Thursday evening, he “would have driven to New Bern and arrived at Ahoskie the next day, Eriday, 3 February, 1905,” though he also testified that he “expected” he would have driven to New Bern Thursday night. Tie could not drive through the country to New Bern Friday night, owing to the bad weather, snow having fallen in the meantime. J. A. Copeland received a telegram from M. O. Gerock, Saturday morning about 10 o’clock, inquiring how his wife Avas. Tie did not tell Mrs. Gerock of the message until later in the day — after 12 o’clock — but Ayired to M. 0. Gerock that she was better. When he told Mrs. Gerock of her husband’s message to him, he found her in bed and worse. She was nervous and troubled about her husband not coming. The defendant’s agent in Maysville knew that M. 0. Gerock Avas in the country, about three miles from Maysville. Her husband’s failure to come Saturday morning caused Mrs. Gerock mental and “physical” suffering, and made her a great deal Avorse. She had a nervous chill, went to bed and did not get up again that day. Her “mental anguish was agonizing” and was caused by his not coming AA^hen she expected him. Her husband was frail and weak. She needed him during her sickness. Mrs. Gerock had the Avords “not dangerous” inserted in the message to allay her husband’s fears, on account of his weak condition.

The defendant introduced no testimony. A motion to non-suit the plaintiff was OA^erruled, and the defendant excepted. The court read the notes of the evidence to the jury and recited in full all the contentions of each party, applying the facts to the law.

The defendant requested the court to give the folloAving instructions to the jury:

*5“1. That, upon the testimony in the case,- the plaintiffs are not entitled to recover, and the jury will answer the issue as to negligence ‘No.’

“2. There can be no recovery for mere disappointment — • that is, at the husband not coming; nor can there be any recovery for mental suffering endured, if any, after M. O. Gerock’s wife’s father, J. A. Copeland, got a telegram from him on Saturday.

“3. It was not the duty of the company to send the message to M. 0. Gerock, who was in the country and beyond its delivery limits.”

The first instruction was refused, and the second and third were also refused, except as given in the charge. The defendant duly excepted.

The court gave the proper legal definition of negligence, and stated clearly to the jury the duty of the defendant to deliver the message, after its receipt in Maysville, to the person to whom it was addressed, within a reasonable time. There was no exception taken to the court’s definition of negligence or to its charge as to the duty of the defendant.

The court then proceeded to charge the jury on each issue separately. On the first issue- the court charged as to the general law of negligence and as to the duty the defendant owed the plaintiff. On this issue the court arrayed all of the facts and circumstances applicable thereto. The court further charged as to this issue: “1. It was the duty of the defendant to transmit and deliver the message within a reasonable time, and a failure to do so was negligence. Reasonable time is governed by the circumstances of the case. There was no negligence in transmitting the message to Maysville, as it reached there at 4:21 P. M. .on Thursday, 2 February, 1905. The telegram was addressed in care of C. 0. Gerock, and the delivery to him was, in law, a delivery to the husband.” The defendant had requested the court to charge the jury as follows: “That when the company delivered the telegram to *6C. 0. Gerock it was a delivery to M. 0. Gerock.” To the last instruction the defendant excepted.

The court charged on the second, issue as follows: “2. 'If the jury answer the first issue ‘Yes/ and they further find from the evidence that M. 0. Gerock would have reached his wife earlier if the telegram had been delivered within a reasonable time, they should answer the second issue ‘Yes’; otherwise, £No.’ ” The defendant excepted.

The court charged the jury that it was not the duty of the defendant to disclose the contents of the message to 0. O. Gerock when it was delivered to him. The facts were fully recited and the contention arrayed on the second issue, and the question as to who had the burden of proof was fully explained as to all the issues.

On the third issue the court charged the jury as follows: “3. If you answer the first and second issues £Yes,’ then the plaintiff is entitled to a reasonable compensation for the mental and physical suffering which was the direct and proximate result of defendant’s act.” The defendant excepted.

The court further charged: “4. You cannot allow anything for mere disappointment or regret; mental anguish means more than this; it means a high degree of mental suffering, and if there was not such suffering you will allow nothing for mental anguish.” The defendant excepted.

The other exceptions were substantially like those already taken by the defendant.

There was a verdict for plaintiff and judgment thereon, whereupon the defendant appealed.

St. Leon Scull for plaintiff.

F. II. Busbee & Son, Winston & Mathews and George Gow-per for defendant.

Walkee, J.,

after stating the case: This case was before us at a former term (142 N. 0., 22). We will not review any question which was then decided, as a party who loses in this *7Court cannot bave tbe case rebeard by a second appeal. Holland v. Railroad, 143 N. C., 435. Tbe Court held in that appeal, upon a motion to nonsuit, that there was evidence sufficient to be submitted to tbe jury upon tbe question of negligence. It is now said by counsel that it did not appear in tbe former appeal that a train left Friday afternoon at 4:22 for Aboskie via New Bern and Goldsboro. But this is a mistake; it does so appear in tbe original case on appeal, tbougb not so stated in tbe opinion. But we tbink tbe judgment should be affirmed on other grounds. There was no special instruction requested as to tbe duty of 0. 0. Gerock to deliver tbe message Friday morning in time for bis brother, M. O. Gerock, to leave Maysville on tbe afternoon train, as will appear hereafter. AVe cannot sustain the motion to nonsuit, nor declare that there was any error in the refusal of tbe first prayer of tbe defendant for an instruction to tbe jury, to tbe effect that tbe plaintiff is not entitled to recover, and they should answer tbe first issue, as to negligence, “No,” for tbe simple reason that we bave before decided that there was evidence of negligence. Besides, there having been evidence of a negligent delay in delivering tbe message until Friday morning, which was not seriously controverted, tbe feme plaintiff was entitled to recover at least nominal damages.

Tbe Judge gave tbe first part of tbe second prayer, and charged tbe jury that they could not allow anything for mere disappointment or regret, and explained to tbe jury what constituted mental anguish, for which damages could be awarded. As to tbe second part of tbe second prayer, we are unable to see bow tbe receipt of tbe telegram by J. A. Oopeland from M. 0. Gerock, merely inquiring about tbe condition of his wife, can affect’ her right to recover damages for her mental anguish, if proximately caused by tbe defendant’s negligence. Oopeland was not her agent to receive such a message for her, and be did not receive it in any such capacity, and she cannot be prejudiced by any failure on bis part to communicate its *8contents to her. It was a mere inquiry, addressed to Copeland, and if she had been informed of its nature it would not have tended to allay her anxiety, but might have increased it.

The Judge virtually gave the third instruction requested by the defendant when he told the jury that a delivery to C. 0. Geroclc was, in law, a delivery to the husband of the feme plaintiff, M. O. Gerock. Besides, it is stated in the case that the Judge gave the proper legal definition of negligence and explained clearly to the jury the duty of the defendant to deliver the message, after its receipt at Maysville, to the person to whom it was addressed, within a reasonable time, and no exception was taken to this part of the charge. It is also stated that the Judge charged the jury upon each issue separately. On the first issue he explained the general law of negligence and the duty which the defendant owed the plaintiff, and he arrayed all of the facts and circumstances applicable thereto. No exception was taken to this part of the charge. What the Judge did say to the jury is not fully set out, and we must assume in this Court that he charged cor-r rectly as to all the issues, in the absence of any showing to the contrary, as we do not perceive that there was erroi* in the instructions of the court below, so far as thej are set forth. The defendant did except to the first instruction of the court as to negligence, as indicated above in the statement of the i case, but we can see no error therein, considering the former decision of this Court. The instruction that a delivery to 0. 0. Gerock was a delivery to M. 0. Gerock, and that it was not the duty of the defendant to disclose the contents of the message to 0. O. Gerock when it was delivered to him, was certainly not prejudicial to the defendant.

As the charge is not set out in full, we are not informed as to how the court specially instructed the jury with reference to the duty of 0. 0. Gerock as to the delivery of the telegram after he-received it. The Judge may have given very proper instructions upon this question, and we must assume that he *9did. There was no special instruction regarding that feature of the case requested by the defendant. The plaintiff was, in a legal sense, injured by the negligence of the defendant’s agent in delaying the delivery of the message, and was entitled to nominal damages, and the charge of the court upon the second issue was, in that view, correct, apart from the other considerations we have mentioned. Whether the plaintiff was entitled to substantial damages, if there was any negligence on the part of O. 0. Gerock, is another and different question. We must again assume that the court instructed the jury correctly as to this matter, as the charge is not all set out. The exceptions to the part of the charge relating to damages are not tenable. There was evidence of mental and physical suffering, and the instruction as to mental anguish was not erroneous.

As the defendant was guilty of negligence in postponing the delivery of the message until Friday morning, thereby preventing M. O. Gerock from leaving Thursday night, and as this was a breach of duty, ■ entitling the plaintiff, at least, to nominal damages, the negligence of 0. 0. Gerock, if any, in not delivering the telegram to his brother in time for him to take the train that afternoon, related to the question of damages, and could be considered only under the third issue. But we are of the opinion that the delay on the part of 0. 0. Gerock in delivering the 'message was excused by the prior negligence of the defendant in delaying its delivery from the time it was received until Friday morning, which either imposed the duty upon it to notify 0. O. Gerock of the importance of the message, which could have been done without disclosing its contents, or, at least, left it as an open question for the jury to decide whether he acted as a man of ordinary prudence would have done under the same circumstances. The defendant’s operator knew the circumstances, and especially did he know the fact that G. 0. Gerock would not return to his home until late in the afternoon. No instructions were *10asked upon this aspect of tbe ease, and tbe defendant cannot, therefore, complain of tbe result. Simmons v. Davenport, 140 N. C., 407. Tbe uncontroverted facts of this case entitled tbe plaintiff to a favorable finding upon tbe first and second issues. Tbe conduct of C. O. Gerock did not present a question of contributory negligence or of proximate cause, but of damages, as tbe plaintiff bad already established a good cause of action by showing tbe prior negligence of tbe defendant.

This case is not like Lefler v. Telegraph Co., 131 N. C., 355. In that case there was no prior negligence of tbe company.

No Error.