#### Z. T. KIVETT et al. v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 18 October, 1911.)

1. Telegraphs — Death Message — Mental Anguish — Damages—Arrival for Funeral — Train Schedules — Evidence.

In an action for damages against a telegraph company for negligent delay in the delivery of a telegram announcing the death of a brother and the time and place of burial, with a request that the sendee “wire if you (he) come,” for the plaintiff to recover he must shpw that he could have reached the place in time to attend the funeral, etc., if the telegram had been promptly delivered; and where the distance was great and by rail, it is competent for him to testify that he knew the “connections” and movements of the trains from having been there before, and that he could have reached his destination in time had the message been delivered promptly, the use of the word “schedule” being immaterial.

2. Telegraphs — Death Message — Mental Anguish — Relationship— Presumptions — Other Evidence — Measure of Damages.

While in an action against a telegraph company for damages for mental anguish caused by the negligent failure of the company to deliver a message announcing the death of a brother, mental anguish will be presumed from the relationship of the parties, this presumption does not exclude other evidence tending to prove a close association between them, and in this case it was competent for the plaintiff to testify that his deceased brother had stayed with him, in the West, three years.

3. Telegraphs — Death Message — Mental Anguish — Negligence—Restrictions — Measure of Damages — instructions—Substantial Compliance.

Defendant’s prayers for special instruction limiting recovery in an action for mental anguish caused by the actionable negligence of defendant telegraph company in a delayed delivery of a message announcing a death, to the mental suffering directly caused by the plaintiff’s inability to attend the funeral on that account, and to the character or degree of suffering which would amount to mental anguish for which damages could be awarded, were substantially given in this case by the judge in his charge, and, therefore, no error committed of which the defendant can complain.

*2974. Telegraphs — Death Message — Street Address — Delivery—Reasonable Efforts.

An attempted delivery of a telegram at tlie street address given in tlie message will not of itself relieve a telegrapli company of negligence, for upon tlie failure of the company to make delivery there it is its duty to make reasonable efforts to deliver it elsewhere, and especially when informed of the place where the addressee could be found.

5. Telegraphs — Death Message — Delivery—Offer to Deliver — Street Address — Evidence.

When the uncontradicted evidence is that the messenger of a telegraph company carried a telegram for delivery to the boarding-house of the addressee, and refused to leave it there, in his absence, with the keeper of the house, though she offered to pay the charges due thereon, the defense that the messenger “offered” the message at the boarding-house is without evidence to support it, and unavailing.

6. Same — Delivery to Messenger.

Defendant telegraph company having attempted to deliver a telegram announcing a death, by a messenger, at the street address given therein, was informed where the addressee was to be found: Held, it was not sufficient for one who was in charge of defendant’s office at the point of delivery to testify that she gave it to another messenger boy for delivery, for it was necessary to show the efforts to deliver the telegram by the one to whom it was given for that purpose.

7. Telegraphs — Death Message — Mental Anguish — Negligence—Issues — Contributory Negligence — Instructions.

In an action to recover damages of a telegraph company for damages arising from its actionable negligence in its delay in delivering a telegram announcing a death, it was not error for the trial judge to refuse to give defendant’s prayers for special instruction, that no recovery could be had if the plaintiff did not use all available means in having the funeral postponed, etc., when no issue as to his contributory negligence had either been tendered or submitted to the jury, as the instructions were not proper upon the issue as to defendant’s negligence.

8. Telegraphs — Two Messages — Negligence Alleged as to One — Instructions on the Other.

There were two telegrams concerning which negligence is alleged, but damages asked only as to one: Held, it was not error, under the circumstances of this case, for the trial judge to refuse *298to give requested instructions pertaining to the message upon which no damages are sought, though the instructions may, in themselves, state correct principles of law.

9. Issues, Form of — Sufficiency—Telegraphs—Mental Anguish— Issues Approved.

It is not material in what form issues are submitted to the jury, provided they are germane to the subject of the controversy . and each party has a fair opportunity to present his version of the facts and his views of the law, so that the case, as .to all parties, can be tried on its merits. The issues submitted in this case for damages alleged to have been caused by defendant’s failure to deliver a death message approved. Wilson v. Taylor, 154 N% C., 216, cited and approved.

10. Telegraphs — Principal and Agent — Declarations—Furtherance of Agent’s Duty — Evidence.

In an action for damages for mental anguish for the negligent delay in the delivery of a telegram, there was evidence tending to show that after the delivery of the telegram had been attempted, the plaintiff, addressee, called at defendant’s office and asked for i-t: Held, declarations of defendant’s agent to the effect that no such message had been received there are competent, as they were made in furtherance of the duty that the agent owed to the defendant.

Appeal from Coolee, J., at November Term, 1910, of HaR-NETT.

These were two separate civil actions, each action being for the recovery of damages for mental anguish alleged to have been caused by the delay and nondelivery of telegrams relating to the death of one Herndon H. Kivett. One suit was in the name of Z. T. Kivett, father of the deceased, and the other in the name of H. H. Kivett, twin brother of the deceased. By consent, the two cases were tried together.

There was evidence on the part of the plaintiffs tending to establish the following facts:

That on 23 July, 1909, the plaintiff Z. T. Kivett was living at Buie’s Creek, Harnett County, North Carolina, and the plaintiff H. H. Kivett, his son, was living at Detroit, Mich., and was boarding with a Mrs. Pack, at 28 Stimson Place, and was working at the Ford Motor Company shops in that city; that at 7 o’clock a. m. on 23 July a message was delivered to the defendant at Benson, in the following words:

*299Buie’s Creek, N. C., July 23, 1909.

H. H. Kivett, Detroit, Mich., 28 Stimson Place.

Herndon died tbis morning. Heart failure. "Will bury Sunday evening. Wire if you come. Z. T. Kivett.

That at 1:35 said message was promptly dispatched by tbe Benson office and was received at tbe office of defendant in Detroit at Y:23 a. M. (central time), being about an bour later; that about 8 o’clock tbe same morning tbis telegram was carried by a messenger boy of tbe defendant to 28 Stimson Place, where be was told by tbe sendee’s landlady, Mrs. Edith M. Pack, that tbe sendee, H. H. Kivett, was not at borne; that be was at tbe Ford Motor Works; that she offered to pay tbe charges, but was told by tbe messenger boy that it must be delivered personally; that the said H. H. Kivett was at work at said motor works on said day, and tbe telegram was not delivered to him there; that on returning to tbe boarding-place at 6 o’clock, p. m. on tbe same day tbe telegram arrived, be was informed by bis landlady that a telegram bad come to tbe bouse for him during tbe day, and be thereupon went to tbe main office of tbe defendant company in Detroit, shortly after 6 o’clock p. m., and asked for tbe telegram, and was told by tbe defendant’s agent in charge that none bad come to bis address during tbe day; that after retiring for tbe night, at about 12:30 tbe next morning tbe telegram was delivered to tbe plaintiff; that be immediately wired to bis father that be could not reach borne in time for tbe funeral, paid for both telegrams and delivered tbis last one to tbe same messenger boy who bad delivered tbe first; that if tbe telegram bad been delivered at any time during tbe day up to 10 o’clock p. m., tbe plaintiff H. H. Kivett could and would have left Detroit in time to have reached bis father’s borne in Buie’s Creek before tbe funeral. There was also evidence tending to show that at tbe time tbe telegram was delivered at 12:30 a. m., 24 July, it was impossible for plaintiff to reach Buie’s Creek in time for tbe funeral.

A witness for tbe defendant, Mary Nolan, testified that on tbe date of tbe receipt of tbe telegram at Detroit she was in charge of a branch office of the defendant in that city; that *300she handled the message in controversy and sent it to the Ford Motor "Works. She did not claim that she carried the message herself, and no witness was introduced who testified that he went to the motor works with the message. The plaintiff II. II. Kivett was examined as a witness, and testified that he had made the railroad connection between Detroit and Dunn once, and knew the movement of the trains. He was then asked:

Q. If the telegram had-been delivered to you in the morning ■at the time Mrs. Pack, your landlady, told you it came there, or at a reasonable time thereafter at the Ford automobile shop, could or would you have gone home to the funeral?

Defendant objects.

A. I could and would have reached home.

Q. If the company had delivered the telegram to you at or about the time they brought it to the landlady the second time, at 10 o’clock, if they had delivered it to you at the Ford automobile shop, could you have gotten home?

Defendant objects; overruled; exception.

A. I could have reached home if they had delivered that telegram any time before 9 o’clock p. m., Friday, 23 July. I could have reached home in time for my brother’s funeral. I would have done it. I could have reached home at the time I inquired for it, in time for my brother’s funeral.

He was also asked:

,Q. When you went out West, state whether, or not your brother went with you ? A. He did.

Q. How long did he stay with you?

Defendant objects.

A. About three years.

The defendant tendered the following issues:

1. Did the defendant negligently delay the delivery of the telegram sent to H. H. Kivett?

2. Did the defendant receive and negligently fail to transmit and deliver a telegram from Detroit, Mich., to Dunn, N. 0., as alleged in the complaint of Z. T. Kivett?

3. Were the plaintiffs injured thereby?

*3014. What damages, if any, is the plaintiff Z. T. Kivett entitled to recover as mental ang'uish caused by such negligence, if any there was?

5. What damages, if any, is the plaintiff H. H. Kivett entitled to recover as mental anguish caused by such negligence, if any there was?

Which his Honor refused to submit, and defendant excepted.

His Honor submitted the following issues:

1. Hid the defendant negligently delay to deliver the telegram addressed to H. H. Kivett in Detroit, Mich., as alleged in the complaint?

2. If the telegram had been delivered promptly, could and would plaintiff's son, H. H. Kivett, have attended the funeral of plaintiff’s son, Herndon H. Kivett?

3. What damages, if any, is the plaintiff Z. T. Kivett entitled to recover of the defendant?

1. Did the defendant negligently delay the telegram sent to H. H. Kivett in Detroit?

2. If the telegram had been delivered promptly, could and would plaintiff have attended the funeral of his twin brother, Herndon H. Kivett?

3. What damage, if any, is the plaintiff H. H. Kivett entitled to recover of the defendant company?

Defendant objected to the submission of the issues in both cases. Objection overruled, and defendant excepted.

The defendant' tendered the following prayers for instructions :

1. That if the jury find from the evidence that the telegram as sent was directed to H. H. Kivett, at 28 Stimson Place, Detroit, Mich., that the same was promptly transmitted to Detroit and within a short time after its receipt there offered the same at the said address, the boarding-place of the plaintiff, but the plaintiff was not there, then any effort made by the defendant to deliver at another place was not called for in the contract, under which the message was sent, and you should answer the first issue “No.”

Eefused, and defendant excepted.

*3022. If the jury find from the evidence that the message was delivered within a reasonable time, to the Ford Motor Works, in pursuance of information furnished to the messenger boy, then the defendant has fulfilled its contract, and it was not the defendant’s duty to locate plaintiff H. H. Kivett among the several employees of that company; and if you so find, you should answer the first issue “No.”

Refused, and defendant excepted.

,,3. The plaintiffs cannot recover damages for any suffering occasioned by the death of Herndon Kivett, but, if at all, only such mental anguish as resulted directly from the inability of H. H. Kivett to get to the funeral; and the jury must be satisfied by the greater weight of the evidence that such inability to reach the funeral was caused directly by the negligence of the defendant.

Refused, and defendant excepted.

4. It was the duty of the plaintiff H. H. Kivett to use all available means to have the funeral postponed and to get there if possible, before he is entitled to recover at all; and if you are not satisfied that he used his best efforts, you should answer the second issue “No.”

Refused, and defendant excepted.

5. Mere disappointment, sorrow, or regret at not being able to reach the funeral or at not having the son at such funeral would not constitute what the law deems mental anguish; and if there is no more than this, then plaintiffs can recover only nominal damages; and there is no evidence in this case that either of the plaintiffs suffered more than disappointment, sorrow, or regret at the inability of H. H. Kivett to get to the funeral.

Refused, and defendant excepted.

6. The plaintiff H. H. Kivett cannot recover for any alleged nondelivery of the telegram alleged to have been sent from Detroit to Z. T. Kivett at Dunn.

Refused, and defendant excepted.

1. The plaintiff Z. T. Kivett -cannot recover anything for an alleged nondelivery of the telegram claimed to have been sent *303from Detroit to Dunn, as there is no evidence that the laws of the State of Michigan allow such a recovery.

Eefused, and defendant excepted. .

8. If the plaintiff, by the exercise of reasonable care, could have postponed the funeral and arranged for the attendance of H. H. Kivett at the funeral, then the plaintiffs could only recover nominal damages.

Eefused, and defendant excepted.

His Honor charged the jury as follows:

“1. It is the duty of a telegraph company to be diligent in transmitting and delivering messages which are received by it, and any failure of this duty on its part would be negligence, and if damage results from such negligence, either to the sender or the sendee of such message, it would be actionable negligence.

2. If the message refers to a case of sickness or death of some member of the immediate family of the sender or sendee, and there be actionable negligence on the part of the defendant company to deliver it, then the law would presume mental anguish, but there would be no presumption as to the amount of damages beyond nominal damages, and it would be upon the defendant to prove by the preponderance of evidence that there was no mental anguish, and the burden would be upon the plaintiff to establish by the greater weight of the evidence the amount of damages beyond nominal damages. Mental anguish, for which a plaintiff would be entitled to recover, is not that which is due to the death, but it must be that which is caused by the negligence of the defendant. Sorrow and grief for the death of a member of the family, however, does not constitute a cause of action unless it is intensified by the negligence of the telegraph company until it becomes mental anguish, and mental anguish is a very intense mental suffering, so much so as to temporarily impart, mental pain; and although the fact that the negligence of the defendant made the cause of disappointment and regret attending upon the sorrow and grief because of the act of'negligence on the part of the defendant company, still, unless a greater feeling than that was produced, it would not amount to mental anguish.

*3043. The damages to be allowed for mental anguish are compensatory and not exemplary, and should be limited to a satisfactory or reasonable compensation. These are psychological in their nature, and may be difficult of assessment, but still the jury should be careful to allow as damages whatever is a fair and reasonable compensation to the plaintiff for his mental anguish caused by the negligence, and no further.

4. The two cases of Z. T. Kivett against the "Western Union Telegraph Company and of II. II. Kivett against the Western Union Telegraph Company are by consent of the parties being tried together. The court further instructs the jury as follows: Now, apply the principles of the law above expressed to the facts of these cases as the jury shall find them.

5. Then upon the first issue submitted in the ease of Z. T. Kivett against the Western Union Telegraph Company, if the jury shall find by the greater weight of the evidence that the defendant negligently delayed to deliver the message addressed to II. II. Kivett in Detroit, as alleged in the complaint, the jury should answer the first issue “Yes.” If they should not so find, they should answer that issue “No”; if they should answer that issue “No,” they need not go any further. And this instruction is given as to the first issue in the other case of II. II. Kivett against the Western Union Telegraph Oom-jmny. But if they should answer the first issue “Yes” as to any of them, then as to both cases if so answered, or as to the one whereof the answer is “Yes,” as the case may be, the jury shall proceed to consider the second issue; and upon that issue the court instructs the jury that if they shall find by the greater weight of the evidence that if the message had been delivered with reasonable promptness, H. H. Kivett could and would have reached his father’s home in time to, and would have attended his brother’s funeral or burial, they should answer that-issue “Yes”; if they should not so find, they should answer that issue “No” in both cases; and if they should answer that issue “No,” they need not go any further.

6. But if they should answer that issue “Yes,” upon the third issue the court instructs the jury that they must allow nominal damages in each case, and, in addition thereto, they *305should allow in each ease a reasonable compensation for the mental anguish which they find the respective plaintiffs suffered because of the negligence of the defendant which the court has heretofore advised, so that the damages allowed for this cause should be reasonable and only in compensation for the ang-uish caused by the negligence of the defendant. The court charges you that in your deliberations on that subject a spirit of fairness should control.

Baggett & Baggett and J. Q. Clifford for plainiiff.

Bose & Bose for defendant.

Alleet, J.,

after stating the case: The plaintiffs could not recover substantial damages unless they established the fact that H. H. Kivett could and would have reached home in time for his brother’s funeral, if the telegram, had been promptly delivered. His evidence on this point was, therefore, material, and we do not think it is subject to the criticism of the defendant, that the witness was stating an opinion, not a fact, and that he does hot .show that he was familiar with the schedules of the trains. He does not use the word “schedule,” but says he had made the connection between Detroit and Dunn once, and knew the movement of the trains. We think the evidence competent.

It was also competent for him to testify that his deceased brother, had stayed with him, in the West, three years, as bearing upon the relationship between them.

While mental anguish will be presumed under conditions presented by this record, when the relationship is that of brothers, this does not exclude other evidence tending to prove a close association between them.

The third and fifth prayers for instructions were substantially given in the charge of the court, and we think there was no error in denying the others.

The first of these prayers, if accepted as law, would relieve the telegraph company from any duty to make inquiry for the sendee of a message, when the street address is given, further than at the place indicated by the address, and is opposed to the *306doctrine in Hendricks v. Tel. Co., 126 N. C., 312, where it is held that, although a telegram is sent in care of another person, it is not sufficient to make inquiry at the place of business of such person, if not delivered to him.

The rule contended for, if sustained, might relieve the defendant from liability in this case, but it would result in imposing additional burdens and expense on it, because under such a rule no one would add a street address to a telegram, and the defendant would have to search a city for a sendee.

Again, there is no evidence that the defendant “offered” the message at the boarding-house. On the contrary, the keeper of the house testified that she told the messenger boy she would pay for the message, and he said it must be delivered personally, and she was not contradicted.

The second prayer could not have been given, because there was no evidence of a delivery at the motor works. The only witness on this question was Mary Nolan, who was in charge of a branch office of defendant in Detroit, and who testifies to no fact except that she gave the message to a messenger boy, who was not a witness.

• The fourth and eighth prayers relate to the conduct of the plaintiff, and, if containing correct statements of law, should have been directed to issues on contributory negligence, instead of to the issue of negligence.

The fact that the defendant did not tender an issue on contributory negligence is very strong evidence that it did not arise.

It would seem that if he had attempted to postpone the funeral, it would not have availed him, as he had to communicate with his father by telegraph, and he sent a telegram which was not delivered.

The court could, with propriety, have given the sixth and seventh prayers, but the refusal to do so is not error.

The plaintiffs did not seek to recover damages for failure to deliver the telegram sent from Detroit, and the charge clearly and explicitly confines the jury to the consideration of the telegram sent from Buie’s Creek.

*307Tbe issues submitted by tbe court are almost identical witb those wbicb were approved in Dobson v. Tel. Co., 152 N. C., 766, and enabled tbe plaintiffs and tbe defendant to present tbeir contentions before tbe jury.

“It is not material in wbat form issues are submitted to tbe jury, provided they are germane to tbe subject of tbe controversy and eacb party bas a fair opportunity to present bis version of tbe facts and bis views of tbe law, so tbat tbe case, as to all parties, can be tried on tbe merits.” Wilson v. Taylor, 154 N. C., 215.

Tbe record does not disclose tbat an exception was taken to tbe conversation witb tbe agent of tbe defendant, wben tbe plaintiff called at tbe telegraph office about 6 o’clock and asked if there was a telegram for him; but in any event we think tbe evidence is competent, because tbe declarations were made in furtherance of a duty tbe agent was then performing for tbe defendant.

There was evidence of negligence, and tbe motion to nonsuit could not have been allowed.

No error.