#### W. F. RAIFORD and Wife v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 4 December, 1912.)

1. Telegraphs — Free Delivery Limits — Mailed Telegram — Negligence —Evidence—Questions for Jury.

When the addressee of a telegram is beyond the free delivery limits of the telegraph company’s terminal office, and there is conflicting evidence as to whether, the defendant company promptly mailed it to the addressee, a finding of the jury in plaintiff’s favor, under an instruction to find for the defendant if the telegram was thus mailed, is conclusive.

2. Telegraphs — Mental Anguish — Interstate Messages — Lex Loci Contractus — Place of Negligence — Recovery.

When a telegraph company receives for transmission. a telegram in a State where a recovery for damages for mental anguish alone is not permitted, to be delivered in North Carolina, where such recovery is permitted, and there is negligence in the delivery here, the decisions of this State control. Semille, if the negligence occurred elsewhere, a recovery could also be had here in such case. $

Brown, J., dissenting.

Appeal by plaintiffs from Peebles, J., at April Term, 1912, of CUMBERLAND.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

II. L. Cook for plaintiffs.

Bose & Bose for defendant.

Clare, 0. J.

Tbis is an action for recovery of mental anguish for failure to deliver a message sent from Bonifay, Fla., to Wade, N. C. Tbe answer admitted tbe prompt receipt of tbe message at Wade. Tbe operator testified tbat be placed tbe telegram in a stamped envelope and deposited it in tbe mail box, directed to tbe sendee, wbo lived two miles out, on tbe E. F. D. route. A colored man corroborated tbis statement. Tbe mail carrier testified tbat no sucb letter was found in tbat box or received by bim. Tbe plaintiff testified tbat tbe telegram was never received. Tbe court charged if tbe letter was thus mailed, *490to answer tbe issue in favor of tbe defendant. Tbe jury found to tbe contrary, and assessed tbe plaintiffs’ damages at $200.

Tbe jury found upon tbe evidence that under tbe laws of Florida tbe courts do not allow a recovery for mental angmisb for failure to deliver a telegram. Tbe court upon tbis verdict entered judgment in favor of tbe defendant, and tbe plaintiffs appealed.

the negligence alleged occurred entirely in tbis State, and in any aspect of the case, judgment should- bave been entered in favor of the plaintiff. Penn v. Telegraph Co., 159 N. C., 306. Even bad it not been shown that the failure to deliver promptly occurred entirely in tbis .State, “There bave been numerous cases in which mental anguish has been recovered where the message was sent from a point outside tbis State to a point in tbis State.” These cases will be found collected in Penn v. Telegraph Co., supra, which overrules Johnson v. Telegraph Co., 144 N. C., 410, which is the only case in which we bave held to the contrary.

TJpon tbe verdict, judgment must be entered in favor of tbe plaintiffs.

Reversed.

BkowN, J., dissenting.