#### T. M. BATTLE v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 8 January, 1910.)

1. Telegraphs — Messages Announcing Sickness — “Morning Train” —Negligence—Evidence—Quickest Way — “Walked.”

When it is admitted that the first train a father could have taken to reach the bedside of his sick child would have been too *630late for Mm to have seen Ms child alive, had the message sued on, reading, “Your baby very sick; come on morning train,” been propmtly transmitted and delivered, yet it is competent for him to show that had the message been promptly delivered, and not negligently delayed in the delivery from 9 p. m. to the next day at 11 a. m., he could and would have walked the distance of thirty-five miles and have seen his child alive, thus avoiding the injury from which the damages demanded in his action arose.

2. Same — Notice to Company.

In an action for damages arising from the negligence of defendant telegraph company in the delivery of a message to a father reading, “Your baby very sick; come on morning train,” the importance of the message is shown by that part of the message relating to the sickness, and the latter part, “come on morning train,” gives indication of the intent for him to come quickly; the company is put upon notice that the father may use the quickest way to get to the bedside of the child, and evidence that he could and would have accomplished this result in time by walking, as in this case, is competent, though it be admitted that it would have been too late if he had taken the train indicated in the message. ' .

3. Telegraphs — -Negligence — Delivery — Evidence of Affection — Measure of Damages.

In an action for damages alleged to have been caused a father by the negligent delay in the delivery of a message announcing the sickness of his child, with a request to come at once, by which he was prevented from seeing his child alive, evidence was competent, upon the measure of damages, that the child was a boy seventeen months old, could walk and talk, and could have recognized plaintiff, as he called him “papa.”

Brown and Manning, JJ., dissenting.

Appeal from Ferguson, J., July Term, 1909, of Swain.

The facts are stated in the opinion of the Court.

W. T. Crawford for plaintiff.

George H. Fearons and Alfred S. Barnard for defendant.

Walker, J.

This action was brought to recover damages for the negligent delay of the defendant in delivering a telegram, in words and figures as follows:

> “Bryson City, N. C., January 29, 1906.

> “T. M. Battle, Andrews, N. C.

> “Your baby very sick. Come on morning train.

> M. T. Battle.”

The sender was the father of the plaintiff, whose child had been taken suddenly and seriously ill. He and his family, composed of his wife and several children, lived at Andrews, N. C., and his wife and children, on the said day, were visiting at the *631borne of tbe plaintiff’s father, in Bryson City, N. C. Tbe plaintiff, at tbe time tbe telegram was sent, bad been living in Andrews about seven months and was employed by tbe Cherokee Extract Company. Tbe distance by rail from Andrews to Bry-son City is forty-five miles, and by tbe public road thirty-five miles. Tbe message was received at Andrews in full time for delivery to tbe plaintiff early in tbe evening and prior to 9 o’clock P. M. Tbe messenger boy received it and was informed where tbe plaintiff lived in tbe village of Andrews, and, when so informed, be replied that it was too far and too dark at that time to go to tbe plaintiff’s bouse for tbe purpose of delivering tbe message, and it was not delivered until 11 o’clock tbe next day. Tbe morning train was due to leave Andrews at 8 o’clock A. M., and, according to tbe schedule of tbe railway company, it should have reached Bryson City at 10 o’clock A. M., but it was considerably late in arriving on tbe 30th of January. Tbe child died at 10 o’clock on tbe 30th. It was admitted that tbe plaintiff could not have reached Bryson City by tbe train before tbe child ' died. He left Andrews for Bryson City on tbe second train and arrived at bis father’s home about 4 o’clock P. M. of tbe 30th. Tbe plaintiff was permitted to' testify, over tbe defendant’s objection, that if tbe message had been delivered to him after 6 o’clock on the night of tbe 29th, or within a reasonable time after it was received by tbe operator on that night, be could and would have walked to Bryson City and reached bis father’s home before bis child died. Why this evidence was not competent we cannot see. Evidence substantially similar was held to be competent in Bright v. Telegraph Co., 132 N. C., at p. 326, where it is said: “In this connection may be. noticed another of tbe defendant’s objections, that tbe court permitted tbe witness Cooper to testify that be would have gone to Wilkesboro if be bad received tbe message in time. ¥e are unable to understand why this is not competent. It tended to prove tbe very fact which tbe defendant, in tbe last exception considered by us, asserted it was necessary for tbe plaintiff to prove in order to recover substantial damages, and it was necessary to prove this fact if tbe plaintiff sought, as she did by her complaint and evidence, to recover damages for tbe mental anguish which resulted from bis failure to go to Wilkesboro.” Tbe case of Bright v. Telegraph Co. has been frequently affirmed, but we need refer to only one of the cases (Hancock v. Telegraph Co., 137 N. C., at p. 503), in which Justice Brown, speaking for the Court, says: “In Bright’s case, 132 N. C., 326, tbe Court (by tbe Justice who delivered its opinion), referring to defendant’s objection to tbe testimony of *632Cooper, tbe addressee, tbat be would bave gone to "Wilkesboro bad be received tbe telegram, says tbat tbe testimony was not only competent, but indispensable, and uses tbe following language: ‘We are unable to understand wby tbis is not competent; it tended to prove tbe very fact wbicb tbe defendant, in tbe last exception considered by us, asserted it was necessary for tbe plaintiff to prove in order to recover substantial damages, and it was necessary to prove tbis fact, if tbe plaintiff sought, as sbe did by ber complain^; and evidence, to recover damages for mental anguish, wbicb resulted from bis failure to go to Wilkes-boro.’ ”

Whatever tbe opinion of any other court may be, its conclusion is based upon what, with all possible respect for and deference to tbe ability -and learning of its judges, we think, is reasoning clearly unsound, and its position is therefore untenable. But we believe a majority of tbe courts adopt our views. How could tbe fact be otherwise proved than by tbe testimony of tbe addressee, unless tbe jury are at liberty to infer tbe fact from tbe relation of tbe parties ? And even if tbat be so, it would still be competent to show, by testimony equally as reliable and perhaps more certain in its character, tbat tbe addressee would actually bave gone to Bryson City tbat night. There was evidence tending to show tbat be could haveaccomplished tbe journey from Andrews to Bryson City during tbe night. Tbis evidence tended to corroborate the iffaintiff, and was competent.

Tbe defendant complains tbat tbe plaintiff and bis wife were permitted to testify tbat their sick child was a boy seventeen months old, could walk and talk, and could bave recognized plaintiff, as be called him “papa.” Tbis testimony was competent to show tbe degree of plaintiff’s mental anguish, if it was not also competent upon grounds relating to the other features and facts of tbe case. But tbe defendant mainly relies upon tbe fact tbat tbe plaintiff was told in tbe message to “come on tbe morning train,” and tbat if be bad complied with tbis “instruction,” as it is called, be would not bave reached tbe bedside of bis child before bis death; and, further, tbat tbe defendant is not liable for any damages not in tbe contemplation of tbe parties at tbe time of making tbe contract. Williams v. Telegraph Co., 136 N. C., 82; Kennon v. Telegraph Co., 126 N. C., 232. As a general proposition, it is very true tbat tbe plaintiff is entitled to recover only such damages as were in tbe contemplation of tbe parties at tbe time of making tbe contract, and that tbe rule established by Hadley v. Baxendale, 9 Exch. Rep., 341, has been applied by us to contracts with telegraph companies, tbat *633rule being as follows: “Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be such as may fairly and reasonably be considered either as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.” The questiomwas discussed and the reasons for applying the rule to such contracts was fully stated in Williams v. Telegraph, Co., supra. But has the defendant placed the correct interpretation upon this message, and is the view which it takes of the case the humane one? We think not. There are two facts stated in the message — first, the serious illness of plaintiff’s child, for it had the croup, sometimes a very dangerous and even fatal disease. The message expressly says: “Tour baby is very sick — croup.” What meaning did this convey to plaintiff’s mind? Why, of course, that his child was so ill as to require his immediate presence. The added words, “Come on the morning train,” were merely intended to impress upon his mind the very serious condition of his child, and the longing of his wife,'its mother, and his father, that he would come as quickly as possible.

Although the fact is not distinctly stated in the case, it reasonably and by fair inference appears that if the plaintiff had not casually heard on the streets of the village of Andrews that his child was sick, and gone himself to the telegraph office to inquire if any message had come, he would have received the message too late to take the morning train. The plaintiff was not, in law, bound to adopt the way indicated in the message for reaching the bedside of his dying child. He had the right to act according to the natural instincts of a father and adopt the speediest method of reaching his father’s home in Bryson City, where he had the right to infer that his little child, the object of his love and affection, was lying almost in the very throes of dissolution. If he desired to walk to Bryson City, he had the right to do so, and any man of ordinary intelligence, and having a moderate share of the common instincts of humanity, and knowing, too, the affection of a father for his child, and that upon reading the message his first impulsive thought would be to go to it as quickly as possible, might well have contemplated that the plaintiff would pursue the course he did. And yet the defendant retains possession of this message, not only over night, but until 11 o’clock A. M. the next day, without making the least effort to deliver it,’ *634and then contends that the plaintiff has no right to recover damages for the mental anguish he suffered. If this is the law, we should remind the people, who hold in our republican form of government all the power the king and his parliament possessed, that “the right divine of kings (the people) to govern wrong,” as Alexander Pope said in the “Dunciad,” has not yet departed, and wé should have some change in the law for the sake of being at least humane, if for no other reason. It would at least prevent the repetition of such wrongs in the future.

If the telegraph companies will not require their employees to act, in the performance, of their very important duties to the public and their patrons, with common intelligence and humanity, they must suffer the consequences of their neglect and not complain of the law when they are made to indemnify those whom they have wronged. There is no use to cite authorities for our ruling, although they are abundant, for common sense and a reasonable regard for the rights of others teach us that it must be the correct principle.

The facts, as they appear in the record, disclose, if anything, the grossest case of negligence ever presented to this Court. What right,* in law, or even according to the rule which ordinarily obtains in business transactions of this kind, did the defendant have to withhold from the plaintiff information as to his child's serious illness, which it had been paid to impart to him? The answer to this simple question is too plain to require any further discussion as to its legal and moral duty under the circumstances. It had no such right, and its operator and the delivery messenger should have known it. The verdict against the defendant was a small one and was fully supported by the evidence.

The other exceptions taken by the defendant, who appealed from the judgment of the court, are without any merit.

No error.

BbowN, J., and MaNNikg, J\, dissenting.