#### TOM BUTLER v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 26 November, 1919.)

1. Telegraphs — Service Messages — Delay in Delivery — Negligence—Evidence —Sickness—Death—Mental Anguish.

A telegraph company failed to promptly transmit and deliver a message announcing the extreme illness of the plaintiff’s brother residing about two-miles from its terminal office, thirty-five miles from its initial office; and the evidence tends to show that the plaintiff, the sender of the message, had several conversations with the defendant’s agent on the morning after the defendant had received it, and had been once, about noon, in the defendant’s terminal office; that the message had been received for transmission about 9:30 one day and delivered about 5 p. m. the next, without evidence that defendant had sent back a service message or had searched for the plaintiff at its terminal office, and that as soon as he received the message the plaintiff immediately went to the place where his brother was, but arrived after the funeral. Held, sufficient to sustain a verdict of the jury upon the questions of whether, except for the defendant’s negligence, the plaintiff would sooner have gone to his brother and have arrived before his death or burial.

2. Telegraphs— Sickness— Death — Evidence—Presumptions—Near Relation —Damages—Contributory Negligence.

The presumption is that, a person who receives a telegram announcing the extreme illness of his brother will make every reasonable effort to promptly go to him.

Civil actioN, tried before Harding, J., at March Term, 1919, of RaNdolei-i, upon these issues:

“1. Did the defendant negligently fail to deliver the telegram to the plaintiff, as alleged? Answer: ‘Yes.’

“2. What amount, if any, is the plaintiff entitled to recover of defendant by reason of the negligence of the defendant, as alleged ? Answer: ‘$500.’ ”

O. H. Redding and Brittain & Brittain for p>laintiff.

J. A. Spence for defendant.

BbowN, J.

The action was brought by the plaintiff to recover damage from the defendant for its negligence in failing to deliver a telegram announcing the sickness of the brother of the plaintiff, and basing his claim for damage on the failure of the defendant to deliver the telegram in time for the plaintiff to reach the sick bed of his brother, Louis Butler, and be present at the funeral.

The motion to nonsuit was properly overruled. There is evidence tending to prove that the following telegram was delivered to the defendant between 9 and 9 :30 a. m., 21 April, 1917, at Biscoe, N. C., for trans*545mission to tbe plaintiff at Franklinsville, N. 0.: “Come at once; Louis Butler is at tbe point of death. (Signed) Eliza Butler.”

There is evidence that tbe defendant failed to deliver tbe said telegram until 5 o’clock p. m. tbe next day. ' It is in evidence that it is about 35 miles from Biscoe to Franklinsville, and that tbe plaintiff lived about two miles from Franklinsville. There is evidence that tbe plaintiff was in Franklinsville tbe morning of tbe 21st, and talked with tbe agent of the defendant; that tbe agent saw him twice at Mr. Allred’s store; that tbe plaintiff was at tbe station where tbe telegraph office is, about 12 o’clock noon, and that be was in Franklinsville nearly all day. There is no evidence that tbe defendant sent a service message to tbe sender of tbe message that tbe plaintiff could not be found or gave tbe sender any opportunity for making provision for tbe delivery of the message to plaintiff’s home. It is contended that there is no evidence that tbe plaintiff would have gone to see bis brother if be bad received tbe message in time.

Tbe plaintiff testified that as soon as be received tbe message that be started, and got there Monday afternoon between sundown and dark. "We think this is evidence sufficient to go to tbe jury as to what tbe plaintiff would have done bad be received the message in due time.

Without reciting it particularly, we think there is evidence tending to prove that bad tbe plaintiff received tbe message in due time be could have gone to bis brother’s residence and been with him before bis death, and certainly in time to attend to bis funeral; besides, tbe presumption is that when a person receives a telegram announcing tbe sickness and impending death of a very near relative, within such a short distance, that be will make every reasonable effort to go to bis relative.

There is no evidence that tbe agent of tbe defendant at Franklinsville searched for tbe plaintiff in Franklinsville that day, although be knew be was there, or that any effort was made to deliver tbe message.

We see no evidence that tbe plaintiff did not use due diligence to reach bis brother after be received tbe telegram or was in any way negligent himself.

Medlin v. Tel. Co., 169 N. C., 495; Hospital Asso. v. Hobbs, 153 N. C., 188.

Upon an examination of tbe entire record we think tbe case was fairly put to tbe jury, and we find

No error.