WalKER, J.,
after stating the case: It appears tbat there was sufficient evidence of negligence on tbe part of tbe defendant in failing to send tbe message on tbe afternoon of 25 January. It was shown tbat both agents were in tbeir offices until
U
o’clock p. m., and while tbe operator at Plymouth testified tbat be called tbe office at Jamesville and failed to get any response, tbis was not conclusive upon tbe jury, and they could find upon all tbe facts and circumstances tbat no effort was made to send tbe message. It is a suspicious circumstance, which they might consider, tbat tbe agent at Jamesville was not called by tbe defendant to corroborate tbe Plymouth opera
tor. Tbe- burden was upon tbe defendant to account for tbe delay, after tbe receipt of tbe message for transmission was shown. It was solely witbin its power to do so, and there must be a presumption of negligence raised by so long a delay, in tbe absence of any. sufficient or satisfactory explanation.
Hoaglin v. Telegraph Co.,
161 N. C., 390. It was held in
Sherrill v. Telegraph Co.,
116 N. C., 655, that, “When tbe plaintiff shows tbe delivery of a message to tbe telegraph company, with tbe charges prepaid (and it would have been tbe same if tbe defendant bad accepted the message with charges to be collected), and tbe failure to deliver tbe message, a
prima facie
ease was made out, and tbe burden rested on tbe defendant to show matter to excuse its failure,” citing Thompson on Electricity, see. 274, and eases;
Bartlett v. Telegraph Co.,
16 Am. St. Rep., 447;
Pearsall v. Telegraph Co.,
21 Am. Rep., 662.
It is not necessary that we should discuss tbe evidence, as there was plainly enough to satisfy tbe jury, if they accepted it as true, that tbe defendant bad negligently delayed to send the message, and that this prevented the plaintiff, Aline Ellison, from leaving on tbe earlier train.
Tbe court properly confined tbe assessment of damages to mental anguish suffered after tbe message was actually delivered to her. There was affirmative evidence that mental -anguish ba'd been caused to both plaintiffs by the- negligence of tbe defendant.
In
Williams v. Telegraph Co., 143
N. C., 147, we stated tbe rule to be that there can be no recovery of damages for mental suffering in such- cases, -unless it is shown “that tbe defendant could reasonably have foreseen from tbe face of the message that such damages would result from a breach of its contract or' duty to transmit correctly, or that it bad extraneous information which should have caused it to anticipate just such a consequence from a neglect of its duty towards tbe plaintiff.”
Tbe message in this case was of a character sufficient to inform the defendant of its great importance, and that mental G-ngnish would probably result from its negligence in failing to transmit it with reasonable promptness. “It has repeatedly
been decided by tbis Court, in cases 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 sendee 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.” We further said in the
Bright case:
“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, hut if mental suffering 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.” But here, as we have shown, there was actual proof of mental anguish, and the case was submitted to the jury upon that proof.- Not only is the
Bright case
ah authority sustaining the validity of the rulings in regard to mental anguish, but
Harrison v. Telegraph Co.,
143 N. C., 147, is directly in point, and there we- said: “There is no presumption of mental anguish growing out of the relation of stepmother and son; but under our decisions it is a fact the plaintiff may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible of proof as the condition of the stomach.” See, also,
Cashion v. Telegraph Co.,
123 N. C., 267. In our case there was blood relationship between the plaintiff Annie Harrison and the deceased, but none between the latter and Aline Ellison, and if the relation the parties actually sustained did not raise any presumption of. mental anguish, the proof supplied its place.
We have seen in
Sherrill v. Telegraph Co., supra,
cited already for another purpose, that the prepayment of the charge
for sending tbe message is not a condition precedent to tbe right of recovery. Tbe agent could bave demanded payment of tbe toll in advance, .but not having done so, and electing to trust tbe sendee for tbe payment of it, tbe 'defendant cannot now avail itself of bis failure to do so as a defense to tbe action.
Tbe right to prepayment was clearly waived.
Miller v. Telegraph Co.,
159 N. C., 502.
Tbe defense that the message was not tendered to tbe defendant’s agent during office hours is equally untenable. Tbe agent received it and undertook, and actually attempted, as be testified, to send it over tbe wires and by telephone. It did not occur to him, at tbe time be was doing so, that tbe office hours bad closed and be was not bound to transmit tbe message. If tbe provision as to office hours was available to defendant, under tbe circumstances of this case, it was waived by tbe conduct of its agent.
Bright v. Telegraph Co., supra; Hood v. Telegraph Co.,
135 N. C., 622;
Carter v. Telegraph Co.,
141 N. C., 374. We held in
Carter’s case, supra:
“Where a message on its face appears to be urgent, tbe fact that it is offered for transmission after office hours will be no defense to tbe company if tbe agent accepted it without' reserve,'” or, in other words, without insisting on tbe exemption from tbe service at tbe time. And in the
Buttle case
it was said: “When tbe agent of a telegraph company receives a message for transmission, and undertakes with tbe sender to deliver it at a time not within its reasonable office hours at its destination, the benefit of tbe office hours is waived.”
If tbe agent was not able to transmit tbe message, it was bis plain duty, under tbe law, as we bave so often declared it, to _ notify tbe sender, Annie Harrison, of tbe fact, so that she could bave taken steps to communicate to her foster sister in some other way.
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WalKER, J.,
after stating the case: It appears tbat there was sufficient evidence of negligence on tbe part of tbe defendant in failing to send tbe message on tbe afternoon of 25 January. It was shown tbat both agents were in tbeir offices until
U
o’clock p. m., and while tbe operator at Plymouth testified tbat be called tbe office at Jamesville and failed to get any response, tbis was not conclusive upon tbe jury, and they could find upon all tbe facts and circumstances tbat no effort was made to send tbe message. It is a suspicious circumstance, which they might consider, tbat tbe agent at Jamesville was not called by tbe defendant to corroborate tbe Plymouth opera
tor. Tbe- burden was upon tbe defendant to account for tbe delay, after tbe receipt of tbe message for transmission was shown. It was solely witbin its power to do so, and there must be a presumption of negligence raised by so long a delay, in tbe absence of any. sufficient or satisfactory explanation.
Hoaglin v. Telegraph Co.,
161 N. C., 390. It was held in
Sherrill v. Telegraph Co.,
116 N. C., 655, that, “When tbe plaintiff shows tbe delivery of a message to tbe telegraph company, with tbe charges prepaid (and it would have been tbe same if tbe defendant bad accepted the message with charges to be collected), and tbe failure to deliver tbe message, a
prima facie
ease was made out, and tbe burden rested on tbe defendant to show matter to excuse its failure,” citing Thompson on Electricity, see. 274, and eases;
Bartlett v. Telegraph Co.,
16 Am. St. Rep., 447;
Pearsall v. Telegraph Co.,
21 Am. Rep., 662.
It is not necessary that we should discuss tbe evidence, as there was plainly enough to satisfy tbe jury, if they accepted it as true, that tbe defendant bad negligently delayed to send the message, and that this prevented the plaintiff, Aline Ellison, from leaving on tbe earlier train.
Tbe court properly confined tbe assessment of damages to mental anguish suffered after tbe message was actually delivered to her. There was affirmative evidence that mental -anguish ba'd been caused to both plaintiffs by the- negligence of tbe defendant.
In
Williams v. Telegraph Co., 143
N. C., 147, we stated tbe rule to be that there can be no recovery of damages for mental suffering in such- cases, -unless it is shown “that tbe defendant could reasonably have foreseen from tbe face of the message that such damages would result from a breach of its contract or' duty to transmit correctly, or that it bad extraneous information which should have caused it to anticipate just such a consequence from a neglect of its duty towards tbe plaintiff.”
Tbe message in this case was of a character sufficient to inform the defendant of its great importance, and that mental G-ngnish would probably result from its negligence in failing to transmit it with reasonable promptness. “It has repeatedly
been decided by tbis Court, in cases 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 sendee 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.” We further said in the
Bright case:
“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, hut if mental suffering 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.” But here, as we have shown, there was actual proof of mental anguish, and the case was submitted to the jury upon that proof.- Not only is the
Bright case
ah authority sustaining the validity of the rulings in regard to mental anguish, but
Harrison v. Telegraph Co.,
143 N. C., 147, is directly in point, and there we- said: “There is no presumption of mental anguish growing out of the relation of stepmother and son; but under our decisions it is a fact the plaintiff may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible of proof as the condition of the stomach.” See, also,
Cashion v. Telegraph Co.,
123 N. C., 267. In our case there was blood relationship between the plaintiff Annie Harrison and the deceased, but none between the latter and Aline Ellison, and if the relation the parties actually sustained did not raise any presumption of. mental anguish, the proof supplied its place.
We have seen in
Sherrill v. Telegraph Co., supra,
cited already for another purpose, that the prepayment of the charge
for sending tbe message is not a condition precedent to tbe right of recovery. Tbe agent could bave demanded payment of tbe toll in advance, .but not having done so, and electing to trust tbe sendee for tbe payment of it, tbe 'defendant cannot now avail itself of bis failure to do so as a defense to tbe action.
Tbe right to prepayment was clearly waived.
Miller v. Telegraph Co.,
159 N. C., 502.
Tbe defense that the message was not tendered to tbe defendant’s agent during office hours is equally untenable. Tbe agent received it and undertook, and actually attempted, as be testified, to send it over tbe wires and by telephone. It did not occur to him, at tbe time be was doing so, that tbe office hours bad closed and be was not bound to transmit tbe message. If tbe provision as to office hours was available to defendant, under tbe circumstances of this case, it was waived by tbe conduct of its agent.
Bright v. Telegraph Co., supra; Hood v. Telegraph Co.,
135 N. C., 622;
Carter v. Telegraph Co.,
141 N. C., 374. We held in
Carter’s case, supra:
“Where a message on its face appears to be urgent, tbe fact that it is offered for transmission after office hours will be no defense to tbe company if tbe agent accepted it without' reserve,'” or, in other words, without insisting on tbe exemption from tbe service at tbe time. And in the
Buttle case
it was said: “When tbe agent of a telegraph company receives a message for transmission, and undertakes with tbe sender to deliver it at a time not within its reasonable office hours at its destination, the benefit of tbe office hours is waived.”
If tbe agent was not able to transmit tbe message, it was bis plain duty, under tbe law, as we bave so often declared it, to _ notify tbe sender, Annie Harrison, of tbe fact, so that she could bave taken steps to communicate to her foster sister in some other way. Its failure to do so was evidence of negligence.
Hendricks v. Telegraph Co.,
126 N. C., 311;
Hood v. Telegraph Co.,
135 N. C., 622;
Cogdell v. Telegraph Co., ibid.,
431;
Woods v. Telegraph Co.,
148 N. C., 61;
Hoaglin v. Telegraph Co.,
161 N. C., 395.
It was no excuse for tbe delay in sending tbe message that its operator was also agent of tbe railroad company and bad other
duties to perform for it. If the defendant employs an agent on joint account with the railroad company, it must abide the consequences of a conflict of duty upon, the part of the agent. The contract of the telegraph company is for prompt delivery. It is no defense that its agent had other duties to attend to as agent for another company, any more than it would be an excuse that it had so much business of its own that one agent or the messengers it had could not promptly and properly handle it. In both cases the defendant is negligent if it does not have sufficient employees to discharge projierly the duty it contracts to do and is chartered and paid to do.
Kernodle v. Telegraph Co.,
141 N. C., 438;
Mott v. Telegraph Co.,
142 N. C., 532;
Carter v. Telegraph Co., supra; Dowdy v. Telegraph Co.,
124 N. C., 522.
We cannot assent to the position that there was no evidence of the agent’s acceptance of the message for transmission— even his unconditional acceptance of it for that purpose. It was for the jury to settle any conflict in the evidence, and they have done so in this instance favorably to the plaintiffs. Nor can we sustain the motion for nonsuit, for there was ample evidence, if- found to be true, upon which to base the verdict.
The court carefully distinguished, in its charge, between mental anguish and mere grief or regret at the death of plaintiffs’ relative and foster mother, and its instructions are' fully-supported, in this respect, by
Davis v. Telegraph Co.,
139 N. C., 83, and
Hancock v. Telegraph Co.,
137 N. C., 497, cases relied on by the defendant.
The evidence as to the ability of Annie Harrison to purchase a coffin, and all the testimony .on that subject, if it was erroneously admitted, was fully eliminated by the court in its charge, and the error, if any, was cured.
It was competent to show the arrangement between Annie Harrison and Aline Ellison before the latter left Plymouth, that she should be notified by wire if Sue Wright should become worse, not as charging defendant with any knowledge of it, for there was no such evidence, but as tending to show that Aline Ellison would have come to Plymouth on the 25th of" January if she had received, the message.
Tbe charge is not in tbe record, and we must presume, in tbe absence of it, that it correctly stated tbe law.
Upon a® review of tbe entire case and a careful consideration of tbe several exceptions, we have not 'been able to discover any error in tbe trial.
No error.
BkowN, J., did not sit.