#### OVEY J. BETTS and RAYMOND BETTS v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 21 October, 1914.)

1. Telegraphs — Mental Anguish — Sendee—Consolation and Assistance.

Where a person has telegraphed to his brother of the death of another brother, the time of burial, etc., and the sendee of the message is prevented from being at the funeral through the negligence of the telegraph company, the sender may recover for the mental anguish occasioned by the absence of the sendee at the funeral, and not hearing from him; and evidence is competent which tends to show that the sendee was an elder brother, whose advice and assistance was especially needed in making the necessary preparation for the burial of the deceased.

2. Same — Death Message — Notice of Importance.

A telegram addressed to Ovey J. Betts, and reading, “Clifton died suddenly this morning; funeral tomorrow afternoon. Have written. Signed, Raymond,” is sufficient upon its face to give notice that mental anguish will likely result if it is not delivered, and to sustain a recovery by both the sender and sendee of the message, brothers of the deceased.

3. Telegraphs — Death Message — Notice of Importance — “Have Written.”

A telegram announcing a death and time of burial, giving, upon its face, implied notice to a telegraph company that mental anguish will likely result if the sendee is unable, through its negligent failure to deliver the message, to arrive in time for the burial, the added words to the message, “have written,” are to be regarded as merely incidental to the announcement of the death and burial, and not as indicating, necessarily, that the sendee is not expected to come, and afford the company, - therefore, no complete defense that the message itself implied that the sendee would not come.

*764. Telegraphs — Death Message — Failure to Deliver — Trials — Evidence— Prima Facie Case — Burden of Proof.

The agent of a telegraph company at its receiving office accepted a telegram for transmission and delivery, requiring the use of telephone connection at the delivering end of the line, and there was evidence tending to show that the operator accepted the message with the promise to “put it through”; that like messages were customarily telephoned to sendees at the same address; and that no service message was sent informing the sender that an additional charge for delivery would be required. Held,, . the failure of the telegraph company to deliver the message raised a prima facie ease of its negligence, and the burden rests upon it to prove it had not been neglectful of its duty; and the defense of the company that it was not required to transmit the message to the sendee over the lines of the telephone company is unavailing under the circumstances of this case.

5. Telegraphs — Death Message — Postponement of Funeral — Trials—Evidence —Damages—Questions for Jury.

Where damages for mental, anguish are sought in an action against a telegraph company for its negligent failure to deliver a message announcing a death and the time of the funeral, and the defense is set up that the message was filed with it toó late for the sendee to arrive in time for the funeral; and there is evidence tending to show that had the message been delivered with reasonable promptness, the funeral would have been postponed and that the sendee would have arrived in time, the question of whether the failure of the company to perform its duty caused the damages alleged is for the determination of the jury.

6. Courts — Arguments of Counsel — Per Curiam Opinions — Statement of Fact —Jury—Appeal and Error.

It is not objectionable for counsel in arguing propositions of law to the court, in the presence of the jury, to cite a per curiam opinion by the Supreme Court, and state the facts in that case, in his endeavor to show the similarity between them and the case at bar, and to contend, for that reason, that the per curiam opinion is authorjty for his position.

7. Telegraphs — Negligence—Service of Other Company — Trials—Evidence.

Where a telegraph company is sued for damages alleged to have been caused by its negligent failure to deliver a telegram, it is competent for the plaintiff to show, upon the question of defendant’s negligence, that another telegraph company, upon the same occasion, gave very prompt and efficient service to the same parties under substantially similar conditions.

Appeal by defendant from Allen, J., at April Term, 1914, of Wake.

These actions were brought, one by Ovey J. Betts and the other by Eaymond Betts, against the defendant, to recover damages for the negligent failure to deliver a telegram in the following words:

To Ovey J. Betts, Technical School, Bogersville, Tenn.

Olifton died suddenly this morning. Funeral tomorrow afternoon. Have written. (Signed) Eaymokd.

*77The message was delivered to defendant’s operator at Raleigh, N. C., on Sunday, 23 June, 1912, at 4:15 p. m., and was transmitted at 4:19 p. m. The operator promised to “get it through.” It was received at Rogersville, but was never delivered. The addressee accidentally read in a newspaper, about 12 o’clock m. on the following Tuesday (25 June, 1912), an article which caused him to think that his brother, Clifton Betts, had been killed by his younger brother. He then wired by the Postal Telegraph Company, asking for information at once. He was answered by the same line, immediately: “Clifton died suddenly. Come at once,” to which he replied by same line: “Will come home at once.” The entire time consumed in the transmission and delivery of these three messages was about two hours, and Ovey Betts wired from Rogersville, the place to which the original telegram announcing Clifton’s death was addressed. It also appears that he was at the Technical School, near Rogersville, at the time this message was received, and it could have been properly delivered to him by the exercise of proper care and diligence. The jury so found. The two cases were consolidated and tried together, the jury returning the following verdict:

“1. Was the defendant guilty of negligent delay in the transmission or delivery of the message sued on, as alleged in the complaint ? Answer: Yes.

“2. What damages, if any, is 'the plaintiff Ovey J. Betts entitled to recover ? Answer: Five hundred dollars.

“3. What damages, if any, is the plaintiff Raymond Betts entitled to recover ? Answer: Two hundred and fifty dollars.”

On 25 June, 1912, the Western Union Telegraph Company’s operator at Rogersville sent a service message, stating that Ovey J. Betts could not be found at the school, and asking for 'a better address. The operator at Raleigh notified Raymond Betts of this message on the night of the said Tuesday, and this was the only notice he had received that his first message to his brother, Ovey J. Betts, announcing the death of Clifton Betts, had not been delivered. There is a telephone line from Rogers-ville to the Technical School, where Ovey J. Betts was living at the time the first message was sent, by which telegrams were customarily transmitted to the school.

Ovey J. Betts testified that he would have left Rogersville for his old home at once, to attend the funeral of his brother, Clifton Betts, had he received the first message, and would have arrived at Raleigh, according to- the railroad schedule, at 7:30 p. m. on Wednesday; and Raymond Betts testified that he would have postponed the funeral until his arrival.

It appears that when Ovey J.' Betts was informed that his brother, •Clifton Betts, had been killed by his younger brother, Levern Betts, as it turned out, accidentally, he immediately wired, “Will come at once,” and *78left Rogersville by conveyance for Morristown, Tenn., where be caught the first train out for Raleigh. This was on Tuesday, and he arrived at Raleigh Wednesday, 26 June, 1912. If the first message had been delivered promptly he could not have reached Raleigh in time for the funeral, unless the latter had been postponed. The train arriving at Raleigh Monday night, 24 June, 1912, was three hours late. The court rendered judgment according to the verdict, and defendant appealed.

B. M. Gatling and P. II. Busbee for plaintiffs.

George H. Fearons and Pace & Boushall for defendant.

WalkeR, J.,

after stating the case: There was evidence that Ovey J. Betts had suffered mental anguish, and we think there can be no serious question raised on this branch of the case. There was testimony from which the jury could reasonably have inferred that Ovey J. Betts, if he had received the message sent by defendant’s line, would have left at once for home and notified his brother, or some relative there, of his coming; and as his brother, Raymond Betts, would have postponed the funeral, he would have had the consolation of attending it, which was lost by the defendant’s negligence. It seems that .Clifton was his favorite brother, and the jury might well have found that he suffered mental anguish, as he was deprived of the privilege of paying this tribute to his memory by taking part in these last sad rites. As to Raymond Betts, we are also of the opinion that there is evidence from which the jury may reasonably have drawn the conclusion that he had endured mental anguish, being deprived of 'the presence, society, and consolation of his brother at the funeral, and not knowing why his message was unanswered.

Discussing a similar question in Bright v. Telegraph Co., 132 N. C., 317, this Court said: “A .woman suddenly bereft of her husband, and who has no father or other relative or friend to whom she can turn in her distress, except the uncle of her husband, might well call upon him for consolation and assistance, especially when, as is abundantly shown by the evidence in this case, he was her husband’s nearest living relative and had raised and educated him and was ‘devoted to her husband and herself,’ and stood towards them in the place of a parent. She had every right to expect that as soon as the sad news of the death of her husband had reached him, he would come at once to her and give her that comfort, consolation, and assistance which she sorely needed. If he was not her father, he entertained for her all of the tender regard and affection of a parent, and was as much interested in her welfare as if he had been her father, and she could therefore reasonably expect that he would do under the circumstances precisely what her father would have done if he had been living.” And to the same general effect is Cashion v. Telegraph *79 Co., 123 N. C., 267: “We do not mean to say that damages for mental anguish may not be recovered for the absence of a mere friend, if it actually results; but it is not presumed. The need of a friend may cause real anguish to a helpless widow, left alone among strangers with an infant child and the dead body of her husband. In the present case the plaintiff seems to have received the full measure of Christian charity from a generous community, but it may be that she did not expect it, and looked alone to her brother-in-law, whose absence she so keenly felt. If so, she may prove it.” ' As substantially said by Justice Brown in Harrison v. Telegraph Co., 143 N. C., 147, the testimony in this case, if believed, tended to prove something more than mere disappointment and should be submitted to the jury, that they may find whether or not mental anguish was really suffered.

But defendant earnestly contends that the face of the message furnished no notice to the company that mental anguish would result. We need not pause here to consider the distinction between actions in tort and those in contract, with a view of determining what damages may be recoverable. Penn v. Telegraph Co., 159 N. O., 306. Numerous decisions of this Court are to the effect that the company must be informed of the nature of the message, either by its words or by facts brought to its attention extraneously. Williams v. Telegraph Co., 136 N. C., 82; Harrison v. Telegraph, Co., 143 N. C., 147; Suttle v. Telegraph Co., 148 N. C., 480. But we have also held in as many cases that the message itself may be sufficient to impart the requisite knowledge, and this is so when its great importance is disclosed by the fact that it relates to the illness or death of a person. “When this is the case (as said in Bright v. Telegraph Co., supra) 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,” citing Lyne v. Telegraph Co., 123 N. C., 129; Sherrill v. Telegraph Co., 109 N. C., 527; Hendricks v. Telegraph Co., 126 N. C., 310, to which may be added Hunter v. Telegraph Co., 135 N. C., 458, where the very question is carefully and elaborately considered by Justice Douglas, with the citation of many authorities; and there are several cases of more recent date to be found in our reports. See Ellison v. Telegraph Co., 163 N. C., 5.

The company will not be permitted to close its mind to the knowledge of significant facts which are apparent on the face of the message, or to disregard its plain import; and if it does so, its fault will not be chargeable to the plaintiff, so as to bar his right to damages. It must see and understand what is obvious to all, that mental anguish will result from delay in handling such a message. These messages are sent to avoid the very thing that has occurred here, and which every intelligent man, mindful of his just obligations to others, should have known would occur *80if be failed in bis plain duty to be reasonably prompt and diligent. If tbis message bad been properly forwarded, it would have accomplished its intended mission, but defendant’s default bas prevented its consummation. We so said in Suttle v. Telegraph Co., 148 N. C., 480, and Dayvis v. Telegraph Co., 139 N. C., 79.

Tbe defendant further insisted that it was not required to transmit tbe message from Rogersville to tbe Technical School over tbe telephone, but only to tbe end of its line; but there is evidence which warranted tbe jury in finding that it undertook to do so. Tbe operator promised “to send it through,” and it was addressed to Ovey J. Betts, at tbe Technical School, via Rogersville. It was also tbe custom to send messages in that way. Barnes v. Telegraph Co., 156 N. C., 150. Besides, defendr ant cannot take advantage of tbis point, because it utterly failed to notify tbe sender, with reasonable promptness, that tbe message bad not been delivered, or to demand any pay for tbe supposed extra service. Hoaglin v. Telegraph Co., 161 N. C., 390. That case was much like tbis one. It was there- held that defendant’s failure to give such notice was evidence of negligence, and further it was said to be well settled “that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that tbe burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure,” citing Hendricks v. Telegraph Co., 126 N. C., 304; Cogdell v. Telegraph Co., 135 N. C., 431, and other cases. Defendant bas not discharged itself of tbis burden, and tbe prima facie case practically stands unchallenged, or, at least, unimpaired.

It is further urged that Ovey I. Betts was notified too late for him to attend tbe funeral; but we have disposed of tbis contention in discussing other matters. Tbe funeral would have been delayed if defendant bad performed its duty, and there would have been no mental anguish. Defendant argues that tbe words in tbe message, “Have written,” show that Ovey was not expected to come, and therefore no barm was done, citing Gainey v. Telegraph Co., 136 N. C., 447; but that case bears no resemblance to tbis one. Those words were evidently inserted for tbe purpose of giving Ovey Betts more fully tbe particulars of tbe death than.could be done in a telegram, and as soon as possible, in tbe event that be could not come. Like words' have been held not to affect tbe result, but tbe fact stated was treated as a mere incident to tbe general purpose for which tbe message was sent, and in tbis connection it was further said not to be at all in accord with tbe promptings of tbe human heart that tbe average relative should be content to put off coming until tbe last moment. Harrison v. Telegraph Co., 143 N. C., 147. We extract tbis passage from tbe beadnote: “Where a telegram notified a stepmother of tbe death of her stepson and of tbe hour fixed for tbe *81funeral, tbe defendant’s contention tbat tbe only purpose of tbe telegram was to notify tbe mother of tbe bour of tbe interment, and tbat nothing else was reasonably within tbe contemplation of tbe parties, is without merit.”

Tbe objection to Mr. Gatling’s statement to tbe court of tbe facts in Spence v. Telegraph Co., which was decided here by a per curiam, order, is not tenable. Counsel was addressing tbe court upon a question of law and trying to show tbe similarity between tbe facts of tbat case and those of this one, for tbe purpose of arguing, to tbe court, tbat Spence's case was an authority for tbe position be bad taken during tbe trial of this ease below. Counsel was acting strictly within bis rights, and tbe cases of Horah v. Knox, 87 N. C., 483; Harrington v. Wadesboro, 153 N. C., 437; Chadwick v. Kirkman, 159 N. C., 259, and S. v. Corpening, 151 N. C., 623, fully sustain tbe ruling of the Court. In those cases tbe counsel was reading tbe facts of another case to tbe jury for tbe purpose of applying tbe law of the- case to tbe one in band, and it was held proper for him to do so. If tbat be true, bow can it be improper to read tbe facts to tbe court, though they are beard by tbe jury, for tbe same purpose? Mr. Gatling was addressing tbe court and not tbe jury.

It may be well, before concluding, to consider tbe testimony of Raymond Betts upon tbe question of bis mental anguish, as additional to what has already been said in respect thereto, as tbe case, we think, is entirely free from error in other respects, and much stress has been laid upon this one feature of it. He testified: “Q. State to tbe jury bow you suffered in consequence of your brother Ovey’s failure to get tbat telegram and to be present here. A. I knew tbat they were favorite brothers, and knowing tbat my brother was locked up at tbe time and tbat I needed him here, and most everything was left up to me to look after in almost every way, tbe conduct of tbe funeral and looking after my younger brother and all, and knowing tbat be was tbe oldest brother, be would be so much help to tbe family. Ovey J. Betts is my oldest brother; I bad charge of most of tbe funeral arrangements.” It will be seen tbat tbe evidence as to bis mental anguish is much .stronger than was tbat of tbe plaintiffs in cases where the sender of tbe message has been allowed by this Court to recover. Tbat tbe testimony of Raymond Betts, which we have quoted, was competent and tended to prove mental anguish, we think was cleárly decided in Shaw v. Telegraph Co., 151 N. C., 638, where similar testimony was considered and .admitted, and its probative force passed upon by tbe Court.

We have discussed tbe case quite fully because learned counsel of defendant, in an able argument before us, supported by a most carefully prepared brief, have zealously contested plaintiff’s right to recover; but we can see no obstacle in their way. Tbe damages were light, in view ' *82o£ tbe evidence, and tbe negligence was gross and inexcusable. Tbe Postal Company gave prompt and efficient service, wbicb tends to sbow tbat defendant, under substantially tbe same conditions, could bave done mucb better than it did and prevented any loss to it.

There is some discrepancy in tbe evidence as to whether Ovey Betts arrived in Raleigh Tuesday or Wednesday night, but we do not deem this material.

No error.