Walker, J.,
after stating the case. We are unable to see why the relationship between Mrs. Bright and Mr. Cooper was not such as to form the basis for a recovery of damages in this case. It was contended by the learned counsel for the defense 'that there must be consanguinity, or relation of the persons by blood, in distinction from mere affinity or relation by marriage. We are not aware of any such distinction in cases of this kind by which the right of recovery is altogether denied when there is only affinity, and no authority was cited to us which induces us to think that it exists. 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, but if mental stiffering- 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.
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. narent. 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.
It is needless to discuss the question further, as this court has settled it against the defendant. “We do not mean to say,” says Douglas, J., speaking for the court, “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.”
Cashion v. Tel.
Co., 123 N. C., 267.
It is not a valid objection to the plaintiff’s right of recovery that the message did not sufficiently disclose its purpose, or show that the plaintiff desired Cooper to come to Wilkesboro. It has repeatedly been decided by this court, in eases 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 sender 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;
78 Am. St. Rep., 658.
The contention that Cooper lived beyond the free delivery limits of the defendant at Burlington, and therefore the defendant was not bound to deliver the message until the extra charge for delivery beyond the limits had been paid, is not tenable. There is no evidence that Mrs. Bright knew that the defendant had any free delivery limits, nor is there any evidence that the defendant demanded of her the payment of any extra charge or even informed her that there were free delivery limits at Burlington and that an extra charge was made by the company for delivery beyond those limits.
Hendricks v. Telegraph Co.,
126 N. C., 310; 78 Am. St. Rep., 658.
The defendant had regular office hours between 7 a. m. and 7 p. m. only, and it received the message at 8:30 p. m. We do not think that under the facts of this case its failure to deliver the message could be excused. There is one thing certain that the defendant notwithstanding any office hours
it may Have bad, -undertook to deliver the message Friday evening just after it was received at Burlington, and it thereby waived its right to claim the benefit of the rule as to office hours, even if that rule be a reasonable one. It does not seem to have occurred to the defendant at the time that it had office hours and was not bound therefore to deliver the message, as it introduced evidence to show that it-made strenuous efforts to deliver the message as soon as it was received. Its reliance now upon the rule would seem to be an afterthought. It cannot be heard to say that it received and delivered messages only within certain hours, when it appears that at the time this message was received its office was open, an operator was there to receive messages, and a messenger boy was there to deliver them. In addition to this, it may be said that the company did not deliver the message at all, nor did it send a service message to get a better address until the afternoon of the next day, when Mrs. Bright had left Wilkesboro. Nothing was ever said by the defendant about free delivery limits or office hours, as far as appears, until the answer in this case was filed.
In the case of
McPeak v. Telegraph Co.,
107 Iowa, 356-364, the court says: “It may be that the defendant can fix office hours which are reasonable. This we do not decide. The company received this message with the understanding that it was to be delivered about 9 o’clock. The agent at Win-field received it and the company, having undertaken to deliver it, was bound to do so with reasonable diligence. He was acting within the scope of his agency, although not within the hours fixed for the active discharge of his duties. This would not relieve the company from discharging the obligation incurred by receiving the message to be delivered out of office hours.” Joyce on Elec. Law, Sec. 761.
The defendant requested the court to charge the jury that if Cooper could not or would not have gone to Wilkesboro
if the message bad been delivered to him in time for him to have done so-, the plaintiff can not recover any actual damage, but only the cost of the message.
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Walker, J.,
after stating the case. We are unable to see why the relationship between Mrs. Bright and Mr. Cooper was not such as to form the basis for a recovery of damages in this case. It was contended by the learned counsel for the defense 'that there must be consanguinity, or relation of the persons by blood, in distinction from mere affinity or relation by marriage. We are not aware of any such distinction in cases of this kind by which the right of recovery is altogether denied when there is only affinity, and no authority was cited to us which induces us to think that it exists. 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, but if mental stiffering- 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.
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. narent. 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.
It is needless to discuss the question further, as this court has settled it against the defendant. “We do not mean to say,” says Douglas, J., speaking for the court, “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.”
Cashion v. Tel.
Co., 123 N. C., 267.
It is not a valid objection to the plaintiff’s right of recovery that the message did not sufficiently disclose its purpose, or show that the plaintiff desired Cooper to come to Wilkesboro. It has repeatedly been decided by this court, in eases 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 sender 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;
78 Am. St. Rep., 658.
The contention that Cooper lived beyond the free delivery limits of the defendant at Burlington, and therefore the defendant was not bound to deliver the message until the extra charge for delivery beyond the limits had been paid, is not tenable. There is no evidence that Mrs. Bright knew that the defendant had any free delivery limits, nor is there any evidence that the defendant demanded of her the payment of any extra charge or even informed her that there were free delivery limits at Burlington and that an extra charge was made by the company for delivery beyond those limits.
Hendricks v. Telegraph Co.,
126 N. C., 310; 78 Am. St. Rep., 658.
The defendant had regular office hours between 7 a. m. and 7 p. m. only, and it received the message at 8:30 p. m. We do not think that under the facts of this case its failure to deliver the message could be excused. There is one thing certain that the defendant notwithstanding any office hours
it may Have bad, -undertook to deliver the message Friday evening just after it was received at Burlington, and it thereby waived its right to claim the benefit of the rule as to office hours, even if that rule be a reasonable one. It does not seem to have occurred to the defendant at the time that it had office hours and was not bound therefore to deliver the message, as it introduced evidence to show that it-made strenuous efforts to deliver the message as soon as it was received. Its reliance now upon the rule would seem to be an afterthought. It cannot be heard to say that it received and delivered messages only within certain hours, when it appears that at the time this message was received its office was open, an operator was there to receive messages, and a messenger boy was there to deliver them. In addition to this, it may be said that the company did not deliver the message at all, nor did it send a service message to get a better address until the afternoon of the next day, when Mrs. Bright had left Wilkesboro. Nothing was ever said by the defendant about free delivery limits or office hours, as far as appears, until the answer in this case was filed.
In the case of
McPeak v. Telegraph Co.,
107 Iowa, 356-364, the court says: “It may be that the defendant can fix office hours which are reasonable. This we do not decide. The company received this message with the understanding that it was to be delivered about 9 o’clock. The agent at Win-field received it and the company, having undertaken to deliver it, was bound to do so with reasonable diligence. He was acting within the scope of his agency, although not within the hours fixed for the active discharge of his duties. This would not relieve the company from discharging the obligation incurred by receiving the message to be delivered out of office hours.” Joyce on Elec. Law, Sec. 761.
The defendant requested the court to charge the jury that if Cooper could not or would not have gone to Wilkesboro
if the message bad been delivered to him in time for him to have done so-, the plaintiff can not recover any actual damage, but only the cost of the message. This instruction could not have been given by the court without confining the plaintiff’s right to damages to those resulting from the mental anguish caused by bis failure to be with her a,t Wilkesboro only, whereas she was entitled to recover damages for any mental suffering arising from his failure to be with her at any time during her long and sad journey from Wilkesboro to Liberty, or at the latter place. He was evidently expected by her to go to Wilkesboro, and the mere fact that the message was sent from Wilkesboro would indicate to him that such was her expectation. If he could not reach that place, then she had the right to expect that he would join her at some intermediate point, or at Liberty.
In this connection may be noticed another of the defendant’s objections that the court permitted the witness Cooper to testify that he would have gone to Wilkesboro if he had received the message in time. We are unable to understand why this is not competent. It tended to prove the very fact which the defendant, in the last exception considered by us, asserted it was necessary for the plaintiff to prove in order to recover substantial damages, and it was necessary to prove this fact if the plaintiff sought, as she did by her complaint and evidence, to recover damages for the mental anguish which resulted from bis failure to go to Wilkesboro.
The testimony of the witness Thurston that messages were delivered beyond the free delivery limits at Burlington prior to tire year 1895, when be was operator for the defendant, becomes immaterial in the view we have taken of the case. If the defendant bad any free delivery limits at that -place, its conduct shows that it did not rely on tire rule as to them in the handling of messages. Besides, the testimony of Thurston, when considered with the other facts and circum
stances in the case, was some evidence tending to show that there were no free delivery limits, or, if they were ever established, that they had been disregarded by the defendant.
We have given the case a careful and thorough consideration and can not find any error in the rulings of the court below.
Per Curiam:
Judgment Affirmed.