#### J. P. MULLINAX v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 9 November, 1911.)

1. Telegraphs — Death Message — Error in Transmission — Delivery— Negligence — Evidence—Nonsuit—Instructions.

Evidence tending to show that while attempting to deliver a message announcing a death the agent of a telegraph company was informed where the addressee could be found, and made no personal effort to deliver it there, but intrusted the communication to another who was not in the defendant’s employment, and that had the message been correctly transmitted and delivered as sent the addressee could and would have attended the funeral, is sufficient upon the issue of defendant’s negligence, and a motion to nonsuit or instructions directing a verdict for defendant on the evidence should be refused.

2. Telegraphs — Contributory Negligence — Information—Evidence.

In an action to recover damages from a telegraph company for mental anguish caused by the defendant’s negligence in failing to correctly transmit and properly deliver a message announcing a death, thereby causing his absence from the burial of the deceased, the plaintiff must show more than mere negligence on defendant’s part, for if it appears that he received information of the death from some other source in time to attend the funeral, and under such circumstances that he could have gone and failed to go, he would be guilty of contributory negligence, the proximate cause of the injury, which would bar his recovery.

3. Telegraphs — Negligence—Telegrams—Principal and Agent — Information — Damages.

A telegraph company cannot escape liability for damages when ■ it intrusts to another the delivery of information to the addressee of a message announcing a death, which by reasonable efforts it should have delivered in time to have avoided the consequences.

4. Same — Rule of the Prudent Man — Burden of Proof.

It is the duty of an addressee who has received partial information from another concerning a message wherein his name was erroneously transmitted, announcing the death of one “Jennie Rans,” which should have been “Jennie Rains,” not to be negligent himself; and the burden is upon him to show that he acted as a reasonably prudent man would have done under all the circumstances in making inquiry from the defendant’s agent or otherwise, or that he had not been put upon such reasonable inquiry as should have caused him to go to the funeral, and thus avoid the damages sought.

*5425. Same — Negligence.

A telegram addressed to “J. H. Mullinax,” announcing the death of “Jennie Rains,” was erroneously transmitted to “J. H. Mullins,” announcing the death of “Jennie Rans.” The defendant telegraph company introduced evidence tending to show reasonable efforts to deliver it, and subsequently that its agent received information from a certain person that the plaintiff could be found at a certain place, and such person took a memorandum of the substance of the message and communicated it to the plaintiff and his wife. There, was conflicting evidence as to whether the plaintiff knew himself to be the addressee or that the deceased was a sister of his; and if the sending point of the message had been communicated to him the night before he would have known that the deceased was his sister. There was evidence tending to show that if the message had been correctly communicated to him promptly that night he could have made necessary financial arrangements in time to have taken a train to his destination and reached there for the funeral: Held, the burden was upon the defendant to show, on the question of contributory negligence, that the plaintiff could have gone to the funeral of the deceased had he acted within the rule of the prudent man.

6. Telegraphs — Contributory Negligence — Death Message — Postpone Funeral.

In an action for the recovery of damages for mental anguish alleged by plaintiff as caused by defendant’s negligence in not properly transmitting and sooner delivering a telegram relating to a death, the burden is upon the defendant to show, if the defense is relied on, that the damages could have been avoided by the postponement of the funeral, and the plaintiff cannot be chargeable for the failure to postpone it by one over whom he had no control, in this case the husband of plaintiff’s deceased sister.

Appeal from Daniels, J., at May Term, 1911, of ObaNGE.

This is an action to recover damages for mental anguish, caused, as the plaintiff alleges, by the negligence of the defendant in the delivery of a telegram, notifying him of the death of his sister, Jennie Rains, which prevented him from attending her funeral.

Jen,nie Rains lived at Franklinsville, in Randolph County. It was admitted that on 28 February, 1910, about 3 o’clock p. m., the following telegram was delivered to the agent of the defendant at Franklinsville:

*543 To J". P. MulliNax, care Eno Cotton Mills, Hillsboro, N. C.:

Jennie Bains killed tbis morning by a cow. Funeral to-morrow evening. Answer. T. A. Slack.

And that wlien received by tbe agent of tbe defendant at Hills-boro, at 3:35 p. m. of tbe same day, it read as follows:

To J. H. MulliNs, care E. C. M. H. B.:

Jennie Bans killed tbis morning by a cow. Funeral to-morrow evening. Answer. E. A. Slack.

It was also admitted tliat tbe sister of tbe plaintiff was buried about 2 o’clock p. m. on 29 February, 1910, and that tbe plaintiff could bave reached Franklinsvillé in time for tbe funeral on a train leaving Hillsboro at 5 o’clock p. m. of 28 February, and on one leaving tbe same place at 4 o’clock a. m. of 29 February.

The telegram was delivered to tbe plaintiff in tbe form in which it was received at Hillsboro, about 8 a. m. of 29 February, and tbe plaintiff immediately telegraphed that be would be at Franklinsvillé on tbe next train, which telegram was received before tbe funeral.

It was also admitted that tbe .plaintiff went to Franklinsvillé on tbe next train after the telegram was delivered to him, and reached there about 5 o’clock p. M. of 29 February, after bis sister was buried.

Tbe plaintiff introduced evidence tending to prove that be bad been tbe engineer at tbe Eno Mills for seven years and was well known; that he worked within 500 or 600 yards of tbe office of tbe defendant, and that if tbe telegram bad been promptly delivered, as it was when received by tbe defendant, be could and would bave gone to Franklyisvill© in time for tbe funeral.

There was evidence on the part of tbe defendant that tbe telegram was promptly sent out by its messenger boy, and that be made inquiry for J. H. Mullin, and could not find such a person.

J. M. O’Neill, a witness for tbe defendant, testified that be was tbe manager of tbe defendant at Hillsboro, and that *544W. E. Haynes was its operator; that on tbe nigbt of 28 February he had a conversation witli Mr. H. S. Oates; that Mr. Oates, Haynes, and himself were at supper, and Haynes remarked to the witness that the boy had not delivered this death message; could not find the party, J. H. Mullin; that Mr. Cates spoke up and wanted to know who was dead, and Haynes then repeated the message to him; that Mr. Oates said: “Maybe that is Jess Mullinax,” and said, “I am going right on back to the store, and he lives close to the store, and if it is some of his people, I will notify him”; that Mr. Oates took an envelope, as witness remembers, out of his pocket, and copied down what Mr. Haynes told him was in the message from Franklin'sville, and that Jennie Bans had been killed by a cow and would be buried to-morrow afternoon; was not sure whether he told him who it was signed by or not; that Mr. Oates copied that down on an envelope he took out of his pocket; that it was in the afternoon; they were at supper, and that time of the year they had supper about 6 o’clock; that they were at Miss Bettie Conklin’s boarding-house near the depot; that he was in the telegraph office that night; that he was in there nearly every night on an average until about 11 o’clock; that ho had two lamps burning; the doors were not open, but anybody could get in that wanted to; Mr. Mullinax did not come to the office that night; witness was present when he came there the next morning; he came in and Mr. Haynes was at the telegraph table and. witness was at the other side of the office, and Mullinax asked if there was a message for him, and Mr. Haynes told him there was one for J. H. Mullin, which might be intended for him, and gave it to him; Mullinax read it and signed for it; the message was addressed to J. H. .Mullin; that when the message was delivered to Mullinax he sent a message to Mr. T. A. Slack; that this message was delivered to Mr. Haynes; Mullinax left on the train at 10:25 or 10:28.

H. S. Cates, who was a merchant in Franklinsville, witness for the defendant, testified: “I live just south of the Oeco-neechee Mountain, about a mile and a half from the depot, and am not ■ connected in any way with the Western Union Tele*545graph Company, and have no interest in the result of this litigation. When I went to supper just beyond the station, when I went into the dining-room at Miss Bettie Conklin’s, Mr. O’Neill was sitting at the table, and he and Mr. Haynes were discussing about a message, and Mr. O’Neill asked me if I knew a party by the name of J. H. Mullins on the hill, and I told him I did not, but I did know a party by the name of J. P. Mullinax, who lived near my store, and I asked him about the message, and he told me about it, and I said I rather expected it was for Mr. Mullinax, and I said: ‘If you will give me a copy of it, or give me the message, I will carry it there,’ and Mr. Haynes gave me a copy. I took a right copy— don’t know that I copied it exactly, but I 'took the outline. I don’t know that I got a statement that the funeral would be the next evening, but I got a statement that Jennie Eans was dead. I got the statement that it was from Franklinsville, sent by some Mr. Slack. After I ate supper, I went back to the store, and I sent some party, I don’t remember who, to see Mr. Mullinax. He lived off the path a distance, and I sent a party by to tell Mr. Mullinax to come to the store, I wanted to see him; and in a few minutes Mr. Mullinax and his wife came in the store and I was out, and when I came in he told me he had been waiting about five or ten minutes, and he asked me what J wanted to see him about, and I told him I had a message, and had a copy of it in my pocket, and I began to look for it and could not find it at once, but afterwards I did find it and read the message to him. I read that a Mrs. Jennie Eans from Franklinsville was dead. I don’t believe I stated when she would be buried. I told him she had been killed by a cow, and that Mr. Slack sent the message. I don’t think I told him any initials. I told him that Mr. Slack had sent a message stating that Jennie Eans, of Franklinsville, had been killed by a cow. I don’t think Mr. Mullinax said anything, but Mrs. Mullinax said: ‘You have got some people up there, and I expect it is your sister;’ and they remarked to each other one thing and another about it, and I think they finally decided it was his sister; but I told him the message was for J. H. Mul*546lins. His wife said in a few minutes, ‘You will have to go, won’t you?’ and be said, ‘Yes,’ and sbe said, ‘You bad better get ready and go.’ Tbis was about 8 o’clock on tbe nigbt of tbe 28tb.”

There was other evidence on tbe part of tbe defendant tending to corroborate tbis evidence.

Tbe plaintiff was examined as a witness, and among other things, said: That be was fond of bis sister, as much so as any brother could be of a sister; that it bad been something like a year and a half or two years prior to her death that be bad seen her; sbe lived at tbe same place sbe did wben sbe died, when be last saw her; that be has suffered mental anguish and regretted tbe failure to see her before sbe was put away; that -it bad given him a lot of trouble; that be has been running an engine at tbe Eno Cotton Mills; be has bad tbe same job ever since be has been there; that bis reason for going to tbe telegraph office on tbe morning of 1 March and making inquiry about a telegram, was that tbe nigbt before Mr. Scott Oates sent for him to come up to bis store, about 8 o’clock; be went there, and it was some time after be got there before be saw Mr. Cates — some twenty or twenty-five minutes; finally Mr. Cates came in and said Mr. O’Neill, tbe agent, told him there came a telegram for somebody saying bis sister was killed; it sounded like Jennie Hans or Jennie Eenn, or something like that; Mr. Cates bad written it down, but be bad lost the paper; Mr. Cates said Jennie Eans or Jennie Eenn, or something like that, and a name sounding like J. H. Mullin; it was not bis name, but sounded something like him, and it might be for him; that be did not think much about it at tbe time "and went on home; tbe next morning he got to thinking about it, and went to tbe depot; that be went to tbe depot after be bad gone to work; that be went to tbe office as soon as it was opened; tbe mill opens af 6 o’clock, which was before tbe opening of tbe telegraph office; tbe telegraph office was not open at tbe time Mr. Cates spoke to him; that they did not have any nigbt train and had closed up; that he did not know where Mr. O’Neill lived; that if tbe telegram bad been delivered on tbe evening of 28 February be would have gone right away to Franklins-*547ville to bis sister’s funeral, on tbe first train be could have got, if be bad been sure about it; that be is pretty sure be could have arranged with tbe mill between 3:25 and 5:28 to have gotten off; that in a case of that kind be certainly could have gone.

Cross-examination:

That on tbe night of 28 February be went to Mr. Oates’ store in response to a message from Mr. Oates, sending for him; be did not know what Mr. Oates wanted; that bis wife went with him; that they went into tbe store together.

Q. When you went in there, didn’t Mr. Oates tell you that be bad bad a talk with Mr. Haynes and Mr. O’Neill? A. No, sir.

Q. Didn’t be tell you that tbe telegraph company bad gotten a message saying that Jennie Eains, who lived at Franklins-ville, bad gotten killed, and it was addressed to some one named J. H. Mullin, and be thought it might be for you? A. No, sir; be didn’t tell me that way.

Q. Didn’t be say there was a message for J. H. Mullins, saying Jennie Eans or Jennie Eains bad been killed, and sent from Franklinsville? A. He told me Mr. O’Neill bad asked him to-see if there was anybody there by that name, and be thought it was so much like my name, it might be for me. He didn’t say anything about Franklinsville.

Q. He told you tbe message stated Jennie Eains bad been killed by a cow? A. Jennie Eans, be said.

' Q. Had been killed by a cow and the funeral would be to-morrow? A. Yes, sir.

Q. Didn’t be tell you that tbe message was from Franklins-ville? A. If be did, I don’t remember it. If be had said anything about Franklinsville, I would have been more sure of it.

Q. Didn’t your wife turn to you and say, “Jim, that is your sister, and you bad better get ready to go?” A. No, sir, not that I know of.

Q. After you bad this conversation with Mr. Oates, you never went down to tbe telegrax^b office? A. No, sir; not that night.

Q. You went home? A. Yes, sir.

*548That the next morning about 8 o’clock he went to the telegraph office and got the message, and at 8 :10 he sent a telegram.

Q. Yon went down and asked thém to see this message addressed to J. H. Mullin? A. Yes, sir; and I saw it was from Franklinsville and I was pretty sure it was my sister.

Q. Then you telegraphed to T. A. Slack that you would be there on the next train? A.' Yes, sir.

Q. If you had left there at '4 o’clock in the morning you would have got to Franklinsville exactly the same /time as if you had left at 5:38 in the afternoon? A. Yes, sir; and T would have left if I had been sure it was my sister.

That after he telegraphed Mr. Slack, he went to Franklins-ville; that after his talk with Mr. Cates he did not go to Miss Conklin’s, where Mr. Haynes was boarding, to find out anything about the message; that he knew Mr. Haynes was working at the telegraph office; that he never went to where he was boarding and he never went to the station until the next morning.

Redirect examination:

He went to the mill after he got the' message and saw Mr. Webb, who was secretary and treasurer, and arranged with him to get off; the mill closed att 6 o’clock; that he did not go to the depot on the-night of 28 February; that he did not go to the depot that night because the depot was shut up and there was no use to go down there, “and I was not sure it interested me anyhow to go.” That he did not know the depot was shut' up; knew it was customary for it to be shut up; he did not go down to see whether it was shut up or not. That on the morning of 1 March he got the money to go to Franklinsville on; that he got it from Mr. Webb at the office; that he could not have gone without first getting money, and did not have the ready money that night; that the mill was not open that night and that he did get the money without any trouble at the mill in the daytime when he asked for it.

The wife of the plaintiff corroborated his evidence.

Exceptions were taken by the defendant to the refusal of its motion to nonsuit, the failure to give certain prayers for *549instructions, and to parts of bis Honor’s charge, all of wbicb are embraced in five propositions:

(1) That the information given to the plaintiff by the witness Cates was as full as that be acted on tbe next morning, and that be received it in time to leave Hillsboro at 4 o’clock a. m. of 29 February, and-in time to reach Franklinsville before the funeral, and that, therefore, his failure to act on this information was negligence and the proximate cause of the injury.

(2) That this information, if not as full as that he received next morning, was sufficient to put the plaintiff on inquiry, and that he failed to make the inquiry, and was therefore negligent, and that this was the proximate cause of his injury.

(3) That predicated on the two preceding propositions, the plaintiff was guilty of contributory negligence on his own evidence.

(4) That if the funeral of the sister could have been reasonably postponed until the arrival of the plaintiff, and her husband declined to postpone it, the answer to the third issue should be “Nothing.”

(5) That his Honor erred in charging that the burden of the second issue was on the defendant.

The jury returned the following verdict:-

1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

2. If so, did the plaintiff, by negligence on his part, contribute to said injury? Answer: No.

3'. What damages, if any, is the plaintiff entitled to recover ? Answer: $1,000.

From a judgment in accordance with the verdict, the defendant appealed.

S. M. Gattis and Bryant & Brogden for plaintiff.

King & Kimball, George II. Fearons, and A. S. Barnard for defendant.

AlleN, J.

The negligence of the defendant cannot be disputed. It failed in its duty in that it transmitted the message *550incorrectly, and also in making no inquiry and no effort to deliver to tbe plaintiff, after being informed tbat it was probably intended for bim.

It is, however, true, as tbe defendant contends, tbat negligence alone will not entitle tbe plaintiff to recover, and that be must go further and show tbat this negligence was tbe proximate cause of bis injury.

It is also true tbat contributory negligence on tbe part of tbe plaintiff is fatal to bis action, and" tbat if be received information of tbe death of bis sister from some other source, in time to attend tbe funeral, and under such circumstances tbat be could have gone, and failed to go, tbat be would be guilty of contributory negligence, and tbe negligence of tbe defendant would not be proximate.

There is practically no dispute as to tbe law. Tbe controversy is as to tbe facts, and as to tbe meaning and effect to be given to tbe evidence.

If we construed tbe evidence of tbe plaintiff as tbe defendant does, or if we were permitted to dispose of tbe case on tbe evidence of tbe defendant alone, we might be justified in denying a recovery; but in our opinion bis Honor held correctly tbat on tbe whole evidence tbe question of proximate cause and contributory negligence was for tbe jury, and this be submitted to them under proper instructions.

The plaintiff does not say tbat the witness Cates told bim tbat there was a telegram for bim saying bis sister was dead, but tbat a telegram bad come for some one with a name like J. H. Mullin, tbat Jennie Rans or Jennie Renn was dead. He denies tbat be was told tbat tbe telegram came from Eranfe-linsville.

Tbe conversation with Oates was at 8 or 9 o’clock at night, when tbe telegraph office was closed; be bad no money and tbe mills were closed, where be could have gotten money.

According to tbe plaintiff, be received tbe additional information tbe next morning, tbat tbe telegram was from Erank-linsville, and then concluded it was bis sister.

If tbe telegram bad been transmitted correctly and bad been promptly delivered, tbe plaintiff would have received it before *5514 o’clock p. m. of 28 February, wben tbe mills were open, and be says be could bave gotten tbe money for bis expenses, and would bave left Hillsboro on tbe 5 o’clock train, and if so, would bave reached Franklinsville in time for tbe funeral.

Tbe defendant cannot, under these circumstances, escape liability by imposing upon one, who owed no duty to tbe plaintiff, tbe obligation of conveying information which tbe plaintiff says was imperfect, and at night, wben tbe plaintiff bad no money and could not get it, and wben tbe office of tbe defendant was closed.

We bave considered tbe first three propositions, insisted on by tbe defendant, largely on tbe evidence of tbe plaintiff, because they are presented under a motion to nonsuit, and under prayers for instructions directing a verdict in favor of tbe defendant on tbe first and second issues, all of which should bave been denied, if there was any aspect of tbe evidence upon which a verdict could bave been returned in favor of tbe plaintiff.

His Honor imposed upon tbe plaintiff all that is required by law. He charged tbe jury that' tbe burden was on tbe plaintiff to prove negligence, and that this negligence was tbe proximate cause of bis injury, that is, that it prevented him from attending tbe funeral.

He also said, as to ’the duty of tbe plaintiff“It was bis duty to exercise tbe care of a man of ordinary prudence, notwithstanding tbe fact if tbe defendant bad been negligent in getting tbe address wrong and tbe name wrong and tbe signature wrong, still be owed tbe duty not to be negligent himself, but to exercise tbe care of a man of ordinary prudence under all tbe circumstances. If be did that, you would answer this issue, £No.’ If tbe defendant has satisfied you from all this evidence, evidence of tbe plaintiff and tbe defendant all taken together, that be failed to act as an ordinarily prudent man would bave acted under all tbe circumstances, you will answer it ‘Yes.’ It was bis duty, if information came to him that was reasonably calculated to put him on inquiry as to whether or not tbe dead woman was bis sister — it was bis duty to exercise ordinary care to find out whether or not it was bis sister; and if *552be failed to exercise such ordinary care in making inquiry and in ascertaining and in attending ber funeral, tbat is tbe reason be suffered, tben be is guilty of contributory negligence, and you will answer this issue ‘Yes.’ Or if be knew from wbat was told him by Mr. Oates tbat it 'was bis sister, and then be did not exercise ordinary care to supply himself with tbe necessary funds, and to make bis arrangements to get off and go in time for tbe funeral, tben be would be guilty of negligence, and if tbat negligence caused him to fail to get to the funeral, and brought about bis suffering, tben you should answer tbat issue ‘Yes.’ So, at last, tbe whole question upon this issue comes down to whether or not be exercised tbe care of an ordinarily prudent man under all tbe circumstances, taking into consideration wbat bad been said to him and wbat be knew and wbat be did, the time of night, tbe fact tbat be bad no money at tbe time, bis character and standing in tbe community, as to whether or not be could have secured tbe necessary funds and could have gotten off, whether be should have concluded tbat she was bis sister, whether be made inquiry about it and pursued tbe investigation and acted as a man of ordinary prudence would have acted under all tbe circumstances. If be did, your answer to this issue should be ‘No,’ tbat is, tbat be was not guilty of contributory negligence. But if tbe defendant has satisfied you tbat be failed to exercise tbe care of a man of ordinary prudence in tbe particulars I have mentioned, or any of them, tben you will answer tbe issue ‘Yes.’ ”

We do not agree with tbe defendant as to its fourth contention.

There is no evidence tbat tbe funeral of tbe sister could have been reasonably postponed, and if this fact appeared, we fail to see bow tbe act of ber husband, over whom the plaintiff bad no control, in declining to do so, could affect bis right to recover.

His Honor correctly held tbat tbe burden of tbe second issue ■ was on tbe defendant.

Tbe cases of Hocutt v. Telegraph Co., 147 N. C., 186, and Hauser v. Telegraph Co., 150 N. C., 557, relied on by tbe defendant, are not in conflict with this view.

*553No issue of contributory negligence was submitted in either case, and consequently tbe question here raised of the burden of proof on that issue could not be involved.

What is said by Justice Walicer in the last case, as to the burden of proof, relates entirely' to the question of proximate cause, as is clearly shown by the language he uses. He says: “The burden of proof was not upon the defendant to show that the plaintiff had not exercised diligence, but upon the plaintiff to show not only that the defendant had been guilty of neglir gence, but that its negligence was the proximate cause of the damage to him.”

This appears to us a clear case of negligence on the part of the defendant, resulting in damage to the plaintiff, and it has been presented to the jury with a just recognition of the rights of both parties.

No error.