NORTH CAROLINA SUPREME COURT. Anna CASHION, Appt., v. tional L. Ins. Co. v. Allen, 116 Mass. 398; Ruiz v. Norton, 4 Cal. 355, 60 Am. Dec. 618; WESTERN UNION TELEGRAPH COM- St. Louis, K. C. & N. R. Co. v. Thacher, 13 Kan. 567; Thompson, Electricity, § 433. The fact that a telegraph company only contracted with the agent in sending the message, and had no notice or knowledge that the plaintiff was in fact principal, is immaterial. Chandler v. Coe, 54 N. H. 571; Crosby v. Watkins, 12 Cal. 88. Where the despatch is sent for an undisclosed principal, the principal may maintain the action in his own name, and the fact that the company had no knowledge that plaintiff was, in fact, the principal, and the party tendering the message his agent, is immaterial. Thompson, Electricity, § 432; Western U. Teleg. Co. v. Broesche, 72 Tex. 654; Croswell, Electricity, § 454, p. 401. If the sender is merely acting as agent or servant of another, the right of action is in the principal or master. Thompson, Electricity, § 431; De Rutte v. New York A. & B. Electro Magnetic Teleg. Co. 30 How. Pr. 403; Milliken v. Western U. Teleg. Co. 110 N. Y. 409, 1 L. R. A. 281; De Rutte v. New York, A. & B. Electric Magnetic Teleg. Co. 1 Daly, 547; Western U. Teleg. Co. v. Moore, 76 Tex. 66; Western U. Telcg. Co. v. Adams, 75 Tex. 531, 6 L. R. A. 844; Harkness v. Western U. Teleg. Co. 73 Iowa, 190; Sherrill v. Western U. Teleg. Co. 109 N. C. 527. John Payne, the signer of the message, was the agent of plaintiff for the purpose of sending it. This telegram was received at the office of defendant at Davidson at five o'clock the same evening, but was not deliv- A telegraph company having knowledge of ered until the following morning. Mock the urgency of a message, and one of this testifies that if the telegram had been character shows its urgency on its face—is promptly delivered he would have ridden liable in damages for negligence in its transthrough the country to Statesville in mission and delivery, although it was pretime to take the train to Morganton that paid and delivered by another acting for the night. Plaintiff left Morganton the follow-one for whose benefit it was sent, at his speing morning with the body of her husband, cial request, and not by the former in perand arrived at Statesville about seven o'clock A. M., where she remained awaiting a train until seven that evening. Mock arrived in Statesville about ten o'clock the same morning, and returned to Davidson that evening with the plaintiff. Further facts appear in the opinion. Messrs. L. C. Caldwell and J. F. Gamble, for appellant: The plaintiff is entitled to recover, in addition to nominal damages, compensation for the actual damage done her, and "mental anguish is actual damage." Young v. Western U. Teleg. Co. 107 N. C. 385, 9 L. R. A. 669. An undisclosed principal may sue in his own name on contract made by an agent, and is entitled to all its advantages and benefits, for the reason that he is the "ultimate party in interest," even against third parties. Story, Agency, § 418: Harkness v. Western U. Teleg. Co. 73 Iowa, 190; Foster v. Smith, 2 Coldw. 474, 88 Am. Dec. 604; Na NOTE. On the disputed question of damages for mental anguish in telegraph cases, see Peay v. Western U. Teleg. Co. (Ark.) 39 L. R. A. 463, and cases cited in footnote thereto. son. Loper v. Western U. Teleg. Co. 70 Tex. 689. The addressee may recover for negligence of the company in delivering a message, and this though the message does not disclose the relation of the parties. Lyne v. Western U. Teley. Co. 123 N. C. 129. Messrs. Jones & Tillett, for appellee: Every court among English-speaking people, and especially every supreme court in the United States, including the supreme court of North Carolina, has over and over again approved Hadley v. Baxendale, 9 Exch. 341, and held that the rule there laid down was the correct one. Huyett & S. Mfg. Co. v. Gray, 111 N. C. 93; Coley v. Statesville, 121 N. C. 301; Asho v. De Rossett, 50 N. C. (5 Jones, L.) 299, 72 Am. Dec. 552; Alpha Mills v. Watertown Steam Engine Co. 116 N. C. 797; Spencer v. Hamilton, 113 N. C. 49. The plaintiff can recover only such damages as were naturally within the contemplation of the parties. How can the damages for mental anguish of the plaintiff here be supposed to have been within the contempla-[ tion of the parties when the defendant company did not even know of the plaintiff's ex istence. Damages ought not to be enhanced by evidence of any circumstances which could not reasonably have been anticipated as probable from the language of the written mes sage. Young v. Western U. Teleg. Co. 107 N. C. 373, 9 L. R. A. 669; Cannon v. Western U. Teleg. Co. 100 N. C. 300. It has never been held that an undisclosed principal could recover any other class of damages except that which the agent could recover if suing on behalf of the principal. Western U. Teleg. Co. v. Kerr, 4 Tex. Civ. App. 280; Western U. Teleg. Co. v. Fore (Tex. Civ. App.) 26 S. W. 783. A party who is not mentioned in a message, and whose interest therein is not communicated to the company, cannot recover damages for mental anguish. Western U. Teleg. Co. v. Proctor, 6 Tex. Civ. App. 300; Weatherford, M. W. & N. W. R. Co. v. Seals (Tex. Civ. App.) 41 S. W. 841; Western U. Teleg. Co. v. Kirkpatrick, 76 Tex. 217; Elliott v. Western U. Teleg. Co. 75 Tex. 18; Western U. Teleg. Co. v. Brown, 71 Tex. 723, 2 L. R. A. 766. Even though the plaintiff's interest in the telegram had been communicated to the company, yet, inasmuch as Mock was only her brother-in-law, in order for her to recover it must not only be sworn that there was some special degree of affection existing between her and Mock, but notice of this special affection must have been communicated to the telegraph company. Western U. Teleg. Co. v. Coffin, 88 Tex. 94; Western U. Teleg. Co. v. Gibson (Tex. Civ. App.) 39 S. W. 198; Western U. Teleg. Co. v. McMillan (Tex. Civ. App.) 30 S. W. 298; Western U. Teleg. Co. v. Garrett (Tex. Civ. App.) 34 S. W. 649. The plain inference from the face of a message like the one mentioned in this case is that it was sent for the benefit of the party to whom it was addressed, and the company not having any notice that it was sent for the benefit of the sender, there can be no recovery for mental anguish suffered by the sender. Western U. Teleg. Co. v. Nations, 82 Tex. 539; Western U. Teleg. Co. v. Luck, 91 Tex. 178. It does not appear from the evidence in this case that the plaintiff suffered any damage whatever for mental anguish, except that she did not have the presence of J. W. Mock with her, and damages for alleged mental anguish arising out of the failure to have the presence of some friend or relative cannot be recovered unless it appears that the friend or relative could have done something substantial for the comfort of the plaintiff. Chappell v. Ellis, 123 N. C 259, Western U. Teleg. Co. v. Birchfield, 14 Tex. Civ. App. 664; Rowell v. Western U. Teleg. Co. 75 Tex. 26. Douglas, J., delivered the opinion of the court: This case was here before, and is reported in 123 N. C. 269. It is now before us on an exception to the charge of the court below, which is stated in the record as follows: "The following is the charge of the court pertinent to the determination of the contention of the parties: 'The plaintiff contends that, by reason of the delay in the delivery of this telegram, her brother-in-law was prevented from being present with her, and that by reason of the absence of her brother-in-law upon this occasion she suffered mental anguish; that she suffered more than she would have suffered, under the circumstances, on account of the death of her husband. Now, to determine this question, the court charges you that there is no presumption of law that plaintiff suffered mental anguish on account of the absence of J. W. Mock; that the fact that she stood in relation to him as a sister-in-law, and the further fact of his being prevented from being with her, would not have raised the presumption that she suffered mental anguish on account of his not being there, but the burden is on the plaintiff to show by the preponderance of the evidence that there was existing between plaintiff and J. W. Mock such tender ties of love and affection as that his presence, advice, and sympathy with her in Morganton, and on the journey to Statesville, would have given her comfort and consolation in her distress, and would have prevented her from suffering to the extent she says that she actually suffered. But if you should find that such a relation existed between plaintiff and J. W. Mock, yet, as the plaintiff admits that she did not sign the telegram, and that her name is not mentioned in the the same as the agent of the plaintiff, before telegram, and that Payne signed and sent she can recover damages for mental anguish occasioned by the failure of J. W. Mock to burden is upon the plaintiff to show, by a be present with her upon this occasion the preponderance of the evidence, that at the time the message was delivered to the defendant company the said company was notified of the fact that the telegram was sent for the benefit of the plaintiff, and also of the relations existing between her and J. W. Mock. And the court charges you that there is no evidence that the defendant telegraph company had any notice that the telegram was sent for the benefit of the plaintiff, or that it had any notice of the relationship J. W. Mock; and your answer to the second existing between the plaintiff and the said issue cannot be more than twenty-five cents, does not contend that there was any physical -the cost of the telegram. The plaintiff injury to herself resulting from the alleged negligence, but the allegation in the complaint is for mental anguish suffered by her; and as the plaintiff has failed to show that the defendant company had notice that the telegram was sent for her benefit, or had notice of the relationship existing between her and J. W. Mock, she cannot recover in this action except the twenty-five cents paid for the telegram. If you should answer the first issue "Yes," that the defendant company thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances, so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, from such a breach of contract." This rule is almost universally followed as to all ordinary business transactions, but can it have any possible application to the case at bar? We think not. What probable damages could Mrs. Cashion possibly have had in contemplation, when, in the first hour of her bereavement, she sent a telegram announcing the sudden and violent death of her husband? Surely she could not be expected to dictate such a telegram with the cool deliberation with which a man would contract for the shipment of a mill shaft; nor can her mental anguish be measured by the rule laid down in determining the lost profits of Hadley's mill. We must admit that damages for mental anguish are somewhat anomalous, and the extreme difficulty of their admeasurement by any ordinary rule of law has led many jurisdictions to reject the doctrine. We have found it established in this state, and feel compelled to uphold it, on the highest principles of public policy and of private right, and must give it such a reasonable construction as will enforce its legitimate This directly presents the question whether the plaintiff can recover damages for mental anguish caused by the negligence of the defendant in failing to promptly deliver a telegram sent through an agent, when the name of the plaintiff was not signed to the telegram, and when the fact that it was sent for her was not disclosed to the defendant at the time the message was sent, nor were her relations with the addressee then communicated to the company. We intended to decide this question at the first hearing, and thought we had done so, at least by direct inference, but, it seems, not explicitly enough to be understood. To prevent any further misconstruction, we say, plainly, she can recover, if otherwise entitled. In other words, the failure to give such information was no bar to the action, or to the recovery of sub-results. stantial damages. In Lyne v. Western U. Teleg. Co. 123 N. C. 129, it was held that, where a telegram relates to sickness or death, it is not necessary to disclose to the company the relation of the parties, as there is a common-sense suggestion that it is important. The same rule applies here. The telegram in question stated that Mr. Cashion had been killed while at work, and on its face suggested that it was of unusual importance to somebody. The defendant knew that somewhere there was a vacant chair; that someone the lonely deathwatch was keeping. Who or where, it mattered not to the defendant, as it had no more right to wrong one person than another. The able counsel for the defendant relies upon Hadley v. Baxendale, 9 Exch. 341, quoting as follows: "Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be such as may fairly and reasonably be considered, either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and One other principle must be kept in view. A telegraph company is in the nature of a common carrier. Claiming and exercising the right of condemnation, which can be done only for a public purpose, it is thereby affected with a public use. It owes certain duties to the public, which are not dependent upon a personal contract, but which are imposed by operation of law. A simple contract is an agreement between two parties, -a drawing together of two minds to a common intent,-and must be voluntary as well as mutual. Whenever a man, at a proper time and place, presents a telegram to the company for transmittal, and at the same time tenders the proper fee, the company is bound to receive, transmit, and deliver it with reasonable care and diligence; it cannot refuse to receive it; and, while it may protect itself by reasonable regulations, it cannot insist upon a personal contract contrary to its usual custom or to public policy. As was said in Reese v. Western U. Teleg. Co. 123 Ind. 294, 7 L. R. A. 583, the failure of the telegraph company to promptly deliver a telegram "is not a mere breach of contract, but a failure to perform a duty which rests upon it as the servant of the people." While reaffirming the doctrine, we must again earnestly caution juries against its abuse. The defendant is in no way sponsible for the anguish suffered by plaintiff for the loss of her husband. that can possibly be charged to it is the injury resulting from a negligent failure to deliver the telegram; and the jury, in considering this matter, should carefully guard against the sympathy they would naturally feel for the widow and orphan child. However creditable to them as men, it must be ignored by them as jurors. If the defendant has been negligent, it is their duty to give to the plaintiff a farr recompense for the anguish she has suffered from such negligence, but from that alone; and, in deter. mining the amount, they should render to each party exact and equal justice, without the shadow of generosity, which is not a virtue when dealing with the property of others. The counsel for defendant argued before us other questions, not presented by the record, which we cannot properly consider. For error in the charge of the court, a new trial must be ordered. The facts are stated in the opinion. Messrs. F. H. Busbee, G. F. Bason, and A. B. Andrews, Jr., for appellant: The right of a railroad company to make reasonable rules for its protection and for the safety and convenience of passengers has never been denied. 1 Fetter, Carr. of Pass. § 247; 1 Redf. Railways, 98; Thomp. Carr. 306; Dietrich V. Pennsylvania R. Co. 71 Pa. 432, 10 Am. Rep. 711. The reasonableness of the rules as to open ing and closing the doors of its waiting room was one of law for the court. 1 Fetter, Carr. of Pass. § 248. When one purchases a ticket he should inform himself as to the usual mode of travel on the road; and so far as the customary mode of carrying passengers is reasonable, he should conform to it. Chicago & A. R. Co. v. Randolph, 53 Ill. 515, 5 Am. Rep. 60; McRae v. Wilmington & W. R. Co. 88 N. C. 526, 43 Am. Rep. 745. The duty of properly lighting a station as a means of ingress and egress to the trains is very similar to the duty of having the waiting rooms and ticket office open, i. e., it must be done a reasonable time before the departure and arrival of trains. Montgomery & E. R. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72, 1 Thomp. Neg. 314; Batton v. South & North Ala. R. Co. 77 Ala. 591, 54 Am. Rep. 80; Alabama G. S. R. Co. v. Arnold, 84 Ala. 159; Hodges v. New Hanover Transit Co. 107 N. C. 576; Harris v. Stevens, 31 Vt. 79, 73 Am. Dec. 337. In 4 Elliott, Railroads, at § 1579, the author says: "It is broadly stated in one of the cases that the fact that a person had purchased a ticket 'created the relation of carrier and passenger, and the law imposed duties arising out of that relation both on the carrier and the passenger,' but this, we venture to say, carries the rule too far." Webster v. Fitchburg R. Co. 161 Mass. 298, 24 L. R. A. 521; McDonald v. Chicago & N. W. R. Co. 29 Iowa, 170, 96 Am. Dec. 114, 124 Iowa, 142. At common law a carrier of passengers and freight was under no obligation to provide depots for passengers awaiting transportation or warehouses for freight. People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 58 Am. Rep. 484; Montgomery & E. R. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72; 1 Thomp. Neg. 314; Batton v. South & North Ala. R. Co. 77 Ala. 591, 54 Am. Rep. 80; Alabama G. S. R. Co. v. Ar nold, 84 Ala. 159. Mr. T. J. Rickman, for appellee: A contract between carrier and passenger arises when passenger goes upon the premises of railway with bona fide intention of taking passage upon defendant's train. Boothby v. Grand Trunk R. Co. 66 N. H. 342; Daniel v. Petersburg R. Co. 117 N. C. 592; Tillett v. Lynchburg & D. R. Co. 115 N. C. 662; Tillett v. Norfolk & W. R. Co. 118 N. C. 1046. Where there was insolence or undue force, punitive damages may be recovered. Allen v. Wilmington & W. R. Co. 119 N. C. 713. Rudeness will entitle the plaintiff to recover punitive damages. Holmes v. Carolina C. R. Co. 94 N. C. 322. Furches, J., delivered the opinion of the court: On the 15th of December, 1896, the plaintiff intending to take the next train on de NOTE. On the question when a person be- | 35 L. R. A. 655; Southern R. Co. v. Smith (C. comes a passenger, see also Webster v. Fitch- C. App. 5th C.) 40 L. R. A. 746; and Young v. burg R. Co. (Mass.) 24 L. R. A. 521, and note; New York, N. H. & H. R. Co. (Mass.) 41 L. B also Wood v. Pennsylvania R. Co. (Pa.) 35 L. A. 193. R. A. 199; Western & A. R. Co. v. Voils (Ga.) chase of the ticket would probably be considered the highest evidence of his intention. But, still, it is his coming to the station within a reasonable time before, with the intention to take, the next train, that creates the relation of passenger and carrier. There is no dispute but what the plaintiff intended to take the defendant's next train to Hot Springs, and we must infer from the charge of the court and the verdict of the jury that they found that plaintiff had purchased his ticket. fendant's road to Hot Springs, in Madison seems to have been considered by his honor. county, entered the defendant's waiting 1 Fetter, Carr. of Pass. § 228. But the purroom at Asheville about 8 o'clock at night, with the intention of remaining there until the departure of the next train on defendant's road for Hot Springs, which would leave 1:20 o'clock of the next morning. He was informed by defendant's agent, in charge of the waiting room, that, according to the rules of the company, she must close the room, and that he would have to get out. The plaintiff protested against this, and refused to leave. But when the clerk of de'fendant's baggage department (Graham) came, and told him that he could not stay, and made demonstrations as if he would put him out, he left. He had no place to go where he could be comfortable. The night was cold. He was thinly clad, and suffered very much from this exposure, and took violent cold therefrom, which ran into a spell of sickness, from which his health has been permanently injured. It was in evidence, and not disputed, that the rules of defendant company required the waiting room to be closed after the departure of defendant's train, and to remain closed until thirty minutes before the departure of its next train; that, under this rule of the defendant, it was time to close the waiting room when the plaintiff was ordered to leave the room, and he was informed that it would not be opened again until thirty minutes before the departure of defendant's next train, at 1:20 of the next morning. The plaintiff contended that he had purchased a ticket from Asheville to Hot Springs before he entered the waiting room; which he showed to the keeper of the room at the time he was ordered out. This was denied by defendant. So, the only question that remains is as to whether the defendant had the right to establish the rule for closing the waiting room, and was the rule a reasonable one? And we are of the opinion that the defendant had the right to establish the rule, and that it was a reasonable one. Webster v. Fitchburg R. Co. 161 Mass. 298, 24 L. R. A. 521; Boothby v. Grand Trunk R. Co. 66 N. H. 342; 1 Elliott, Railroads, §§ 199, 200; 4 Elliott, Railroads, § 1579. The rule would probably be different in the case of through passengers, and in the case of delayed trains; but, if so, these would be exceptions, and not the rule. Waiting rooms are not a part of the ordinary duties pertaining to the rights of passengers and common carriers; but they are established by carriers as ancillaries to the business of carriers, and for the accommodation of passengers, and not as a place of lodging and accommodation for those who are not passengers. This being so, it must be that the carrier should have a reasonable control over the same, or it could not protect its passengers in said rooms. There is er ror. New trial. The defendant asked, in writing, a great number of instructions, which were not given. Among these was the following: "If the jury believe the evidence, the answer to the Maggie MEANS, Admrx., etc., of Taylor first issue should be, 'No.'" The first issue was as follows: "Was the plaintiff injured 1. 2. Means, Deceased, Appt., V. PANY. (124 N. C. 574.) It is negligence in a railroad company not to furnish a conductor on a local train with one passenger car, which runs on a schedule so arranged as to enable people on the route to visit a city for several hours, and return at a reasonable hour on the night of the same day, when the train ord!narily carries a good many passengers. by the negligence of the defendant, as al- CAROLINA CENTRAL RAILROAD COMleged in the complaint?" The court, among other things, charged the jury that, if the plaintiff bought a ticket to take passage on the next train, he had a right to remain in the waiting room until that train left, and that if the jury found from the evidence that plaintiff had bought a ticket, and exhibited it, as he alleges he did, he is entitled to recover actual damages, but not punitive damages. To that part of the charge referring to the purchase of the ticket, and plaintiff's right to remain in the waiting room, the defendant excepted. We are of the opinion that both these exceptions are well taken, but it is not necessary that we should discuss them both. If either one of them is sustained, it is substantially an end to the plaintiff's case. In fact, the discussion of the one involves the other. A party coming to a railroad station with the intention of taking the defendant's next train becomes, in contemplation of law, a passenger on defendant's road, provided that his coming is within a reasonable time before the time for departure of said train. To constitute him such passenger, it is not necessary that he should have purchased his ticket, as 3. The question of a railroad company's negligence in failing to furnish a conductor is a question of law, where the train ordinarily carries a good many passengers and runs on a schedule so arranged as to encourage travel upon it. The declaration or statement of a train hand on a mixed train, while hurriedly going from a coach at the rear end of the train to the engine in front, that he wanted to get to the engineer and give him the tickets which he had collected before the NOTE. AS to the obligation of a street-railway company to furnish a conductor on a car, see South Covington & C. Street R. Co. v. Berry (Ky.) 15 L. R. A. 604, and note. |