#### ALINE ELLISON v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 10 September, 1913.)

1. Telegraphs and Telephones — - Delay in Message — Trials — Presumptions.

Where an unusual delay in tbe delivery of a telegram by a telegraph company is shown, the burden of proof is on the company to account for the delay; and a presumption of negligence is raised in the absence of sufficient or satisfactory explanation.

2. Telegraphs and Telephones — Office Hours — Trials—Rebuttal Evidence.

Where in an action to recover, damages against a telegraph coffipany for a negligent delay in the delivery of a death message, the defendant seeks to excuse itself for an unusual delay in delivery by showing that it was occasioned by the observance of reasonable office hours, and, to sustain this defense, its agent testifies that he repeatedly called the terminal office and failed to get any response, and there was testimony that both agents were in their respective offices at the time, the testimony of the agent is not conclusive upon the jury, and it is for them to find, upon all the facts and circumstances, whether the agent attempted to transmit the message as testified by him, and the failure of the defendant to introduce the terminal operator in corroboration is a circumstance which the jury may consider upon the question.

3. Telegraphs and Telephones — Mental Anguish — -Measure of Damages.

In this action to recover damages of a telegraph company for negligently delaying the transmission and delivery of a death message, it is held that the damages were properly confined by the trial 'court to the mental anguish consequently suffered by the plaintiff after the time of delivery of the message.

*64. Telegraphs and Telephones — Death Message — Notice of Importance.

Where a. telegraph company has received a message for transmission and delivery, announcing a death, the character of the message is sufficient to inform the defendant of its great importance, and that mental anguish would probably result from its negligence in failing to transmit it with reasonable promptness.

5. Telegraphs and Telephones — Mental Anguish — Relationship— Presumptions — Evidence.

While no presumption of mental anguish is raised from the negligencé of a telegraph' company in the transmission or delivery of a message announcing a death to one not related by blood to the deceased," yet such may be shown and damages recovered by the plaintiff, as, in this case, that she had been taken by the deceased into her family at a tender age, and regarded as a daughter by her, and that she actually suffered mental anguish.

6. Telegraphs and Telephones — Charges Prepaid — Waiver.

Where the agent of a telegraph company does not require the prepayment of the charges for the transmission or delivery of a telegram, but accepts it with charges to be collected at destination, it is a waiver by the comp'any of its right to demand its charges in advance, and does not bar a recovery in a suit to reeover damages for the negligence of the defendant in 'the failure to perform its duty respecting it.

7. Telegraphs and Telephones — Office Hours — Acceptance of Message — Waiver.

When the agent of a telegraph company receives a message for transmission and delivery after its office has closed for the day, it is a waiver by the company of its right to the observance of reasonable hours there; and should the company fail to transmit the message to the terminal office for the reason that the office was closed there also, it is his duty to notify the defendant thereof, and his negligent failure to do so is actionable, if the proximate cause of the injury.

8. Telegraphs and Telephones — Joint Offices — Sufficient Employees ■ — Negligence.

' It is the duty of a telegraph company to have a sufficient number of employees to discharge properly the duties it contracts to do, and it is no defense to an action to recover damages for its negligent failure to transmit and deliver a message it had accepted for that purpose, that the offices handling the message *7were joint offices with the railroad company, and its employees there were engaged, at the time, in their duties .to the railroad company.

9. Telegraphs and Telephones — Trials—Office Hours — Messages— Conditional Acceptance — Questions for Jury.

It is for the jury to decide, upon conflicting evidence, whether the agent of a telegraph company accepted conditionally, after office hours, a message for transmission, when that defense is relied on in an action to recover damages for the defendant’s negligence in its transmission and delivery.

10. Telegraphs and Telephones — Death Message — Measure of Damages — Grief—Mental Anguish.

In this action to recover damages for mental ánguish for the alleged negligent delay in the transmission and delivery by the telegraph company of a message announcing a death, the charge of the court that the jury should distinguish between mental anguish and mere grief and regret at the death of the deceased is approved. .

11. Telegraphs and Telephones — Agreement by. Sender and Sendee —Evidence Corroborative.

Where damages for mental anguish are sought in an action against a telegraph company for its alleged negligence ’ in the transmission and delivery of a message announcing a death, "it is competent, to sustain the plaintiff’s evidence that she would have gone on the next train to the place where the body of deceased was then lying, to show a previous arrangement and understanding between the plaintiff and the sender of the message that the latter would notify the former should the condition of the subject of the message become worse.

12. Trials — Evidence—Instructions—Harmless Error.

The erroneous admission of evidence on the trial in this case was cured by the charge of the court.

Appeal by defendant from Long, J., at Spring Term, 1913, Of WASHINGTON.

•This and the case of Harrison v. Telegraph Go., involving practically the same questions and arising out of the same transaction, were consolidated in this Court and argued together.

There was evidence for the plaintiffs, Aline Ellis.on' and Annie Harrison, that they were adopted hy Sue Wright as her *8daughters, and reared and educated by ber, Annie being her niece and Aline her husband’s niece. They lived in her home from a very tender age — 3 and I years respectively — and were treated as her children and lived there as sisters. In January, 1911, Sue Wright became very ill, and Aline went from her home in Jamesville to her foster mother’s home in Plymouth to see her. As her condition was improved on 25 January, 1911, Aline returned to her home in the afternoon of that day, and arrived at Plymouth about 4:30 o’clock the same day, the two places being only 15 miles apart.' Shortly after she left, Sue Wright grew worse, and died about 5 o’clock. A little after -5 •o’clock p. m. Annie Harrison asked Bettie Ellis, wife of Henry Ellis, to go to the defendant’s office and send this message to Aline Ellison: “Sue Wright is dead. Come on the night train.” Bettie Ellis asked her husband, who was employed at the railroad station, to give the message to the operator, who was also agent of the railroad 'company, and he did so at once. This was about 5 :30 p. m. The message was not sent that evening, and not until after 10 o’clock the next morning, and was not received by Aline Ellison until 12 o’clock, at the time she heard the mill whistle blow for that hour. She left by the first train, hut did not reach Plymouth until 4:30 p. m. If the message had been sent when it was received by the operator, on that afternoon, she would have received it in time to have taken the I o’clock p. m. train, and would have reached Plymouth at 7:30 p. m. on 25 January, and she would have taken that train if she had received the message in time. There was an understanding and arrangement between Annie and Aline that the former would wire the latter if their foster mother’s condition grew worse, and that Aline would come to Plymouth, but there was mo evidence that this was known to the defendant’s operator, except such notice of it as he could derive from the message. The agent knew that Annie Harrison lived with Sue Wright.

The agent, J. A. Griffin, testified that he accepted the message after office hours, and promised to send it as a matter of accommodation if he found that it could be sent that evening, *9but that the office at Plymouth closed at 6 o’clock p. mv and he might not be able to get an answer from the operator, though he .would try to do so. He tried the wires and the telephone connecting the two places, but failed to get any response. The next morning he told Henry Ellis that he would destroy that message and send a new one, which he did, it being the one received by Aline Ellison at 12 o’clock the next day. He was both agent of the railroad company and operator of the telegraph company, but as operator he was not required to be in his office after 6 o’clock p. m., though as agent of the railroad company he was required to be in his office until 7:30 o’clock p. M., when the train arrived from Plymouth, and the agent of the railroad company at Plymouth, who was also telegraph operator, was required to be in his office until 7 o’clock p. m., when the train from Eocky Mount leaves Plymouth for James-ville. J. A. Griffin denied that he knew where Annie Harrison lived. This witness was not corroborated by Henry Ellis, though the latter did not positively contradict him, but merely stated that he did not recollect that the transaction was as related by the operator. The railroad and telegraph offices were the same.

The defendant read in evidence the seventh Section of the Harrison complaint, in which it is alleged that the plaintiff sent the message after 4 o’clock p. m. on 25 January, and told the defendant’s agent of the facts and agreement between her and Aline Ellison, and requested the agent to send the message to her at Jamesville, notifying her of the death of Sue "Wright, and that she paid the toll for the same, But this is not important, as the case is viewed by the Court.

It is stated in the record, “that the court 'charged the jury fully on the law of the case, and no exception was taken to the charge.” At defendant’s request, the court gave the following instructions:

“1. The plaintiff is not entitled to recover any damages because of any delay in getting the coffin, or casket, from James-ville, and the jury will not consider this in making up their verdict on the second issue.

*10 “2. Tbe plaintiff cannot recover any damages because of tbe offensive condition of tbe corpse at or before tbe burial, and tbe jury will not consider tbis in making up tbeir verdict as to damages.

“3. There is no evidence tbat tbe defendant bad any notice of any arrangement between plaintiffs tbat Aline Ellison should furnish coffin, and no damages can be given by tbe jury on account of tbat.

“4. Henry Ellis, in having tbe message prepared and offered for transmission, if you find be did so, was tbe agent of the plaintiff, and not of tbe defendant, and defendant cannot be held responsible because of any damage or hurt suffered by bis negligence, if you find be was negligent.

“5. Tbe jury can give no damages by way of punishment to tbe defendant.”

Tbe defendant, also in writing, further requested tbe court to charge tbe jury as follows:

“6. Upon all tbe evidence introduced, tbe jury should answer . tbe issues in favor of defendant.”

This instruction tbe court declined to give, and defendant excepted.

There was a verdict for tbe plaintiff in each case, and judgment having been entered thereon, defendant appealed.

Winston & Matthews for plaintiff.

Pruden & Pruden and 8. B. Shepherd for defendant.

WalKER, J.,

after stating the case: It appears tbat there was sufficient evidence of negligence on tbe part of tbe defendant in failing to send tbe message on tbe afternoon of 25 January. It was shown tbat both agents were in tbeir offices until U o’clock p. m., and while tbe operator at Plymouth testified tbat be called tbe office at Jamesville and failed to get any response, tbis was not conclusive upon tbe jury, and they could find upon all tbe facts and circumstances tbat no effort was made to send tbe message. It is a suspicious circumstance, which they might consider, tbat tbe agent at Jamesville was not called by tbe defendant to corroborate tbe Plymouth opera*11tor. Tbe- burden was upon tbe defendant to account for tbe delay, after tbe receipt of tbe message for transmission was shown. It was solely witbin its power to do so, and there must be a presumption of negligence raised by so long a delay, in tbe absence of any. sufficient or satisfactory explanation. Hoaglin v. Telegraph Co., 161 N. C., 390. It was held in Sherrill v. Telegraph Co., 116 N. C., 655, that, “When tbe plaintiff shows tbe delivery of a message to tbe telegraph company, with tbe charges prepaid (and it would have been tbe same if tbe defendant bad accepted the message with charges to be collected), and tbe failure to deliver tbe message, a prima facie ease was made out, and tbe burden rested on tbe defendant to show matter to excuse its failure,” citing Thompson on Electricity, see. 274, and eases; Bartlett v. Telegraph Co., 16 Am. St. Rep., 447; Pearsall v. Telegraph Co., 21 Am. Rep., 662.

It is not necessary that we should discuss tbe evidence, as there was plainly enough to satisfy tbe jury, if they accepted it as true, that tbe defendant bad negligently delayed to send the message, and that this prevented the plaintiff, Aline Ellison, from leaving on tbe earlier train.

Tbe court properly confined tbe assessment of damages to mental anguish suffered after tbe message was actually delivered to her. There was affirmative evidence that mental -anguish ba'd been caused to both plaintiffs by the- negligence of tbe defendant.

In Williams v. Telegraph Co., 143 N. C., 147, we stated tbe rule to be that there can be no recovery of damages for mental suffering in such- cases, -unless it is shown “that tbe defendant could reasonably have foreseen from tbe face of the message that such damages would result from a breach of its contract or' duty to transmit correctly, or that it bad extraneous information which should have caused it to anticipate just such a consequence from a neglect of its duty towards tbe plaintiff.”

Tbe message in this case was of a character sufficient to inform the defendant of its great importance, and that mental G-ngnish would probably result from its negligence in failing to transmit it with reasonable promptness. “It has repeatedly *12been decided by tbis Court, in cases where the relationship of the parties was not disclosed and the special purport of the message could not possibly' have been understood, that it was not necessary for the company to know the relation between the sender and sendee from the terms of the message, or to know anything more than that the message is one of importance, and that this should always be inferred from the fact that 'it relates to the illness or death of a person. When this is the case, it is sufficient to put the company on notice that a failure to deliver will result in mental suffering, for which damages may be recovered. Lyne v. Telegraph Co., 123 N. C., 129; Sherrill v. Telegraph Co., 109 N. C., 527; Hendricks v. Telegraph Co., 126 N. C., 310.” We further said in the Bright case: “The law does not regard so much the technical relation between the parties, or their legal status in respect to each other, as it does the actual relation that exists and the state of feeling between them. It does not raise any presumption of. mental anguish when there is no, relation by blood, hut if mental suffering does actually result from the failure to deliver a message where there is only affinity between the parties, it may be shown and damages recovered.” But here, as we have shown, there was actual proof of mental anguish, and the case was submitted to the jury upon that proof.- Not only is the Bright case ah authority sustaining the validity of the rulings in regard to mental anguish, but Harrison v. Telegraph Co., 143 N. C., 147, is directly in point, and there we- said: “There is no presumption of mental anguish growing out of the relation of stepmother and son; but under our decisions it is a fact the plaintiff may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible of proof as the condition of the stomach.” See, also, Cashion v. Telegraph Co., 123 N. C., 267. In our case there was blood relationship between the plaintiff Annie Harrison and the deceased, but none between the latter and Aline Ellison, and if the relation the parties actually sustained did not raise any presumption of. mental anguish, the proof supplied its place.

We have seen in Sherrill v. Telegraph Co., supra, cited already for another purpose, that the prepayment of the charge *13for sending tbe message is not a condition precedent to tbe right of recovery. Tbe agent could bave demanded payment of tbe toll in advance, .but not having done so, and electing to trust tbe sendee for tbe payment of it, tbe 'defendant cannot now avail itself of bis failure to do so as a defense to tbe action.

Tbe right to prepayment was clearly waived. Miller v. Telegraph Co., 159 N. C., 502.

Tbe defense that the message was not tendered to tbe defendant’s agent during office hours is equally untenable. Tbe agent received it and undertook, and actually attempted, as be testified, to send it over tbe wires and by telephone. It did not occur to him, at tbe time be was doing so, that tbe office hours bad closed and be was not bound to transmit tbe message. If tbe provision as to office hours was available to defendant, under tbe circumstances of this case, it was waived by tbe conduct of its agent. Bright v. Telegraph Co., supra; Hood v. Telegraph Co., 135 N. C., 622; Carter v. Telegraph Co., 141 N. C., 374. We held in Carter’s case, supra: “Where a message on its face appears to be urgent, tbe fact that it is offered for transmission after office hours will be no defense to tbe company if tbe agent accepted it without' reserve,'” or, in other words, without insisting on tbe exemption from tbe service at tbe time. And in the Buttle case it was said: “When tbe agent of a telegraph company receives a message for transmission, and undertakes with tbe sender to deliver it at a time not within its reasonable office hours at its destination, the benefit of tbe office hours is waived.”

If tbe agent was not able to transmit tbe message, it was bis plain duty, under tbe law, as we bave so often declared it, to _ notify tbe sender, Annie Harrison, of tbe fact, so that she could bave taken steps to communicate to her foster sister in some other way. Its failure to do so was evidence of negligence. Hendricks v. Telegraph Co., 126 N. C., 311; Hood v. Telegraph Co., 135 N. C., 622; Cogdell v. Telegraph Co., ibid., 431; Woods v. Telegraph Co., 148 N. C., 61; Hoaglin v. Telegraph Co., 161 N. C., 395.

It was no excuse for tbe delay in sending tbe message that its operator was also agent of tbe railroad company and bad other *14duties to perform for it. If the defendant employs an agent on joint account with the railroad company, it must abide the consequences of a conflict of duty upon, the part of the agent. The contract of the telegraph company is for prompt delivery. It is no defense that its agent had other duties to attend to as agent for another company, any more than it would be an excuse that it had so much business of its own that one agent or the messengers it had could not promptly and properly handle it. In both cases the defendant is negligent if it does not have sufficient employees to discharge projierly the duty it contracts to do and is chartered and paid to do. Kernodle v. Telegraph Co., 141 N. C., 438; Mott v. Telegraph Co., 142 N. C., 532; Carter v. Telegraph Co., supra; Dowdy v. Telegraph Co., 124 N. C., 522.

We cannot assent to the position that there was no evidence of the agent’s acceptance of the message for transmission— even his unconditional acceptance of it for that purpose. It was for the jury to settle any conflict in the evidence, and they have done so in this instance favorably to the plaintiffs. Nor can we sustain the motion for nonsuit, for there was ample evidence, if- found to be true, upon which to base the verdict.

The court carefully distinguished, in its charge, between mental anguish and mere grief or regret at the death of plaintiffs’ relative and foster mother, and its instructions are' fully-supported, in this respect, by Davis v. Telegraph Co., 139 N. C., 83, and Hancock v. Telegraph Co., 137 N. C., 497, cases relied on by the defendant.

The evidence as to the ability of Annie Harrison to purchase a coffin, and all the testimony .on that subject, if it was erroneously admitted, was fully eliminated by the court in its charge, and the error, if any, was cured.

It was competent to show the arrangement between Annie Harrison and Aline Ellison before the latter left Plymouth, that she should be notified by wire if Sue Wright should become worse, not as charging defendant with any knowledge of it, for there was no such evidence, but as tending to show that Aline Ellison would have come to Plymouth on the 25th of" January if she had received, the message.

*15Tbe charge is not in tbe record, and we must presume, in tbe absence of it, that it correctly stated tbe law.

Upon a® review of tbe entire case and a careful consideration of tbe several exceptions, we have not 'been able to discover any error in tbe trial.

No error.

BkowN, J., did not sit.