#### L. H. HORNTHAL v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 23 September, 1914.)

Telegraphs — Mental Anguish — Other States — Lex Loci Contractus.

In an action against a telegraph company to recover damages for mental anguish alone for its negligent failure to transmit 'to and deliver a telegram in another State, and under the laws of that State a recovery for mental anguish may not be had unless accompanied with injury to the person or property, and it *603appears that the negligence complained of occurred wholly • in such other State, the laws of that State control, and a recovery will accordingly be denied by our courts.

Appeal by defendant from Ferguson, J., at June Term, 1914, of WASHINGTON.

Action to recover damages for mental anguish arising from a negligent delay in transmitting and delivering a telegram delivered by plaintiff’s brother to defendant in Norfolk, Va., and addressed to plaintiff at Plymouth, N. C., in the following words: “I think you had better come at once; father very sick.” The father lived in Norfolk at the time the telegram was sent. The following admissions were made in the case:

“1. That there was no negligence whatever committed by the defendant or its agents in North Carolina, and that the only negligence claimed by the plaintiff was that committed in the State of Virginia.

“2. That the telegraphic message sued on was delivered to the Western Union Telegraph Company in Norfolk, properly addressed to the plaintiff in Plymouth, at 6 :05 p. m. on Saturday, but was not forwarded until 7 :19 the following morning, and was received by the agent in Plymouth at 7:20 Sunday morning and by him delivered promptly to the plaintiff.

“3. That plaintiff left Plymouth on the Norfolk Southern Railroad, being the next train leaving there after he received the telegram sued on, and reached Norfolk about 4’p. m. Sunday.

“4. That plaintiff- suffered no physical or pecuniary loss because of the failure to get the telegram on Saturday night, but claims mental anguish only.

“5. That by the law of Virginia no recovery can be had for mental anguish unless it is accompanied by. physical suffering or pecuniary loss, and then the recovery is confined to a penalty of $100.

“6. There was a train leaving Plymouth about 1 o’clock at night for Norfolk, due there at 8 :30 a. m. There was evidence on the part of the defendant, uncontradicted, that this train was about two hours late on the morning of the death of plaintiff’s father.”

*604Tbe verdict of tbe jury was as follows:

“1. Did tbe defendant receive tbe telegram referred to in tbe complaint and negligently fail and refuse to transmit and deliver same to plaintiff witbin a reasonable time, as alleged in tbe complaint? Answer: Yes.

“2. If so, wbat damages, if any, did tbe plaintiff sustain by reason of sucb delay in transmission and delivery? Answer: $500.

“3. Under tbe law of Virginia, can damages for mental anguish, independent of injury to person or property, be recovered against a telegraph company for negligence in failing to transmit or deliver a message, although tbe company is advised of tbe character of tbe message? Answer: No.”

It is unnecessary to set out tbe charge of tbe court on tbe question of negligence in Norfolk, Va., in tbe view taken of tbe case by tbe Court.

Judgment for tbe plaintiff, and appeal by defendant.

Wafd & Grimes for plaintiff.

George II. Fearons, Pruden & Pruden, S. Brown Shepherd, and Alfred S. Barnard for defendant.

Walker, J.,

after stating tbe facts: It was admitted that there was no negligence unless it was in Norfolk, Va., and we may, in tbe beginning, concede, for tbe sake of argument, that there was evidence of negligence there. But if defendant was negligent in handling tbe message in Norfolk, and tbe court instructed tbe jury to confine their inquiry.to that alleged negligence, as it was admitted there was none elsewhere, we are of tbe opinion that plaintiff, upon tbe verdict and admissions, was not entitled to judgment. We are confronted at tbe outset with tbe admission that tbe alleged negligence occurred in Virginia; that there was no negligence in this State, and, further, that a recovery for mental anguish is not permitted by tbe law of Virginia for negligence in not transmitting or delivering a telegram, where there is no injury to tbe person or property, and the law of Virginia is also so found by tbe verdict to be, as will appear by tbe third issue and tbe answer thereto. We need not *605consider the recent case of Penn v. Telegraph Co., 159 N. C., 306, because tbe negligence was alleged therein to have taken place in this State, while here it occurred wholly and exclusively in the State of Virginia.

The very question now presented for our decision has recently been under consideration in the case of W. U. Telegraph Co. v. Brown, 34 Sup. Ct. Reporter (U. S.), p. 955. In that case it appeared that the telegram was sent from South Carolina to Washington, D. C., and the negligence occurred in the latter place. It was a message announcing the death of plaintiff’s father, and the action was in tort to recover damages for mental anguish arising out of the failure of the company to deliver the message in "Washington, D. C. The law of South Carolina allows a recovery for mental anguish, but the law of the District of Columbia does not. The case there presented was, therefore, the converse of ours, but the same principle must govern both, as neither suit was brought in the State where the wrong was committed. With reference to the facts as stated in the Brown case, the Court, by Mr. Justice Holmes, said: “It is established as the law of this Court that when a person recovers in one jurisdiction for a tort committed in another, he does so on the ground of an obligation incurred at the place of the tort that accompanies the person of the defendant elsewhere, and that is not only the ground, but the measure of the maximum recovery,” citing Slater v. R. R., 194 U. S., 126; Cuba R. Co. v. Crosby, 222 U. S., 473. And again: “What we said is enough to dispose of the case. But the act also is objectionable in its aspect of an attempt to regulate commerce among the States. That is, as construed, it attempts to determine the conduct required of the telegraph company in transmitting a message from one State to another or to this District, by determining the consequences of not pursuing such conduct, and in that way encounters W. U. Telegraph Co. v. Pendleton, 122 U. S., 347, a decision in no way qualified by W. U. Telegraph Co. v. Commercial Mill Co., 218 U. S., 406.”

In Cuba R. Co. v. Crosby, supra, the Court, by the same justice, said: “When an action is brought upon a cause arising *606outside of the jurisdiction, it always should be borne in mind that the duty of the Court is not to administer its notion of justice, but to enforce an obligation that has been created by a different law. Slater v. Mexican Nat. R. Co., 194 U. S., 120. The law of the forum is material only as setting a limit of policy beyond which such obligation will not be enforced there. With very rare exceptions, the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it. American Banana Co. v. United Fruit Co., 213 U. S., 347. See Bean v. Morris, 221 U. S., 485, 486, 487. That and that alone is the foundation of their rights.” The same doctrine is stated in .laggard on Torts (H. S.), p. 102, where it is said that “The wrongfulness of the act or conduct complained of as a cause of action in tort is determined by the lex loci, and not by the lex fori, and the same is true as to éontracts, the validity of the cause of action depending upon the law of the place where the agreement was made, at least where the breach occurs wholly in that place.”

It is needless for us to discuss, in this 'case, how it would be if the breach of the contract, which was made in Virginia, had occurred here, or the negligence in delivering the telegram had been committed here. See Penn's case, supra. It is quite sufficient to decide that, as the breach of the contract and the negligence or breach of duty took place wholly in Virginia, the plaintiff can have no cause of action in the courts of this State, unless it is given to him by the law of Virginia, which is negatived both by the admission of facts and by the verdict. In Cuba R. Co. v. Crosby, supra, the Court states strongly the view of the law upon this subject, which denies a cause of action to plaintiff, as follows: “We repeat that the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place. The right to recover stands upon that as its necessary foundation. It is part of the plaintiff’s case, and if there is reason for doubt, he must allege and prove it.” <

*607Minor’s Conflict of Laws, pp. 479, 480, 481, tbus states tbe principle governing tbis case: “Tbe law of tbe situs of a tort is, of course, tbe 'proper law’ to govern tbe liabilities and rights arising therefrom. If not liable by tbe lex loci delicti, tbe general rule is that tbe defendant will not be liable elsewhere. If liable by that law, be will usually be held liable wherever tbe question arises to tbe same extent as if be were sued in tbe locus delicti itself. But as in other cases, there are occasions upon which tbe foreign lex loci delicti will not be enforced in tbe courts of tbe forum. These are in tbe main tbe same exceptional cases which apply to tbe operation of any proper foreign law. As applied to torts, they may be said to consist of (1) those cases where tbe ‘proper law’ is in direct contravention of tbe law or policy of tbe forum; (2) where tbe remedy, prescribed for tbe tort by tbe lex loci delicti is j)enal in character; and (3) statutory torts, where tbe statute, in creating tbe liability, at tbe same time creates a mode of redress peculiar to that State, by which alone tbe wrong is to be remedied. It is not always easy to ascertain tbe situs of. a tort, tbe locus delicti, which is to furnish ‘the proper law’ of tbe case. If tbe whole injury is caused by one single act, or by several acts, all of which occur in tbe same jurisdiction, there is no troubles, usually in locating tbe tort, as having its situs at tbe place where tbe injury occurs. But if tbe tort is committed upon tbe high seas, or if tbe cause of tbe injury arises partly in one State and partly in another, there is more difficulty.”

If we apply these principles to tbe facts as admitted and stated in tbe verdict (third issue), tbe conclusion cannot be avoided that tbe court erred in not granting tbe nonsuit. We therefore sustain tbe first and third assignments of error, and with direction that tbe action be dismissed.

Eeversed.