#### DORA B. WARD (MRS. H. S. WARD) v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 6 March, 1946.)

Telegraph Companies § 2—

An action to recover for failure to transmit an interstate message is governed by the Federal decisions, and plaintiff may not recover damages for mental anguish, or punitive damages, or any state statutory penalty.

Appeal by plaintiff from Harris, J., at October Term, 1945, of Beaupobt.

This was an action to recover damages for failure to transmit a message to Tallahassee, Florida, from "Washington, North Carolina, and to *176recover $25.00 State statutory penalty for such failure. At the close of the evidence the defendant, having first tendered judgment for $6.12, the total amount shown to have been actually expended by the plaintiff, and accrued costs, the court stated he would charge the jury that the plaintiff could not recover any sum on account of the alleged mental anguish, nor could any punitive damage alleged and prayed for be assessed against the defendant and in favor of the 'plaintiff. Whereupon the plaintiff in deference to the intimation of the court submitted to a voluntary nonsuit, and appealed from judgment predicated on such intimation.

H. C. Garter for plaintiff, appellant.

Francis R. Siarlc and Rodman & Rodman for defendant, appellee.

Schenck, J.

If it be conceded, without being decided, that the communication involved in this action was to have been addressed to the fifteen-year-old son of the plaintiff, or to someone in his behalf in Tallahassee, Florida, the communication would have been an interstate message, and therefore governed by the Federal decisions. Hardie v. Telegraph Co., 190 N. C., 45, 128 S. E., 500, and cases there cited. There could have been no recovery for mental anguish. Western Union Telegraph Co. v. Brown, 234 U. S., 542, 58 L. Ed., 1457; Western Union Telegraph Co. v. Speight, 254 U. S., 17, 65 L. Ed., 105; Hardie v. Western Union Telegraph Co., supra; nor could there have been any recovery of punitive damages, Aldrich v. Western Union Telegraph Co., 66 Fed. (2d), 26; nor any recovery of a State statutory penalty, Boegli v. Western Union Telegraph Co., 251 U. S., 315.

Since the defendant tendered judgment for $6.12, the total amount shown by the evidence to have been expended by the plaintiff, and the costs then accrued, and since there are no other damages prayed for except that due to mental anguish and that sought by way of punitive measures, and of recovery of penalty under State statute, there was no error in his Honor’s intimation that he would charge the jury that the plaintiff could not in effect recover any damage other than the $6.12, and accrued costs, for which judgment was tendered by defendant.

For the reasons given the judgment below must be affirmed, and it is so ordered.

Affirmed.