¶1concurring. Mental suffering is as real as physical. Every one who has suffered either is a competent witness that there is no fiction about it. There is the same practical difficulty in measuring compensation for physical anguish as for mental, but the same difficulty arises also in nearly all cases of estimating unliquidated damages. Juries, under the instruction of learned and just judges, who will restrain excessive verdicts, must, upon consideration of all the evidence, award fair compensation. All courts allow compensation for mental suffering, not only when accompanied by physical pain, but in many cases when there is no physical suffering, as in actions for seduction, slander, libel, breach of promise of marriage, and perhaps some others. The courts in the several independent State jurisdiction's in this country have not been agreed as to the allowance of damages for mental suffering when it has been caused by the wrongful or negligent conduct of a telegraph company in the delay or non-delivery of what is known as death messages, but the uniform and unbroken decisions of this Court place it among those that allow recovery in such cases. The legal rule laid down is clear and just: “In all cases, damages for mental anguish are purely compensatory and should never exceed a just and reasonable compensation for the injury suffered.” And we have just repeated in Bowers v. Telegraph Co., 135 N. C., at this term, that mere disappointment will not amount to mental anguish.
¶2When the relationship of the parties is close, the law presumes some mental anguish from the fact that the telegram was sent, the amount of the compensation for the mental suf*468fering caused by tbe failure to deliver being a matter for tbe jury upon tbe evidence. Tbe nearness of tbe relationship is only material when tbis presumption is relied upon. There is no better statement of tbe rule on tbis point than that to be found in tbe clearly reasoned opinion of Mr. Justice Walker in Bright v. Telegraph Co., 132 N. C., 317: “’The law does not regard so much tbe technical relation between tbe parties, or their legal status to each other, as it does the actual relation that exists and tbe state of feeling between them. It does not raise any presumption of mental anguish when there is no relation by blood, but if mental suffering does actually result from tbe failure to deliver a message (of tbis nature) where there is only affinity between tbe parties, it may be recovered. … It is not necessary for the company to know tbe relation between tbe sender and tbe sendee from tbe terms of tbe message, or to know anything more than that tbe message is one of importance, and tbis should always be inferred from tbe fact that it relates to tbe illness or death of a person. "When tbis is tbe case, it is sufficient to put tbe company on notice that a failure to deliver will result in mental suffering, for which damages may be recovered.”
¶3Since it is established as a fact in tbis case that there was mental suffering caused by tbe defendant’s failure to deliver tbe telegram, and there was evidence to prove it, tbis case does “not fall beyond the limits of the law,” which holds the defendant liable to render just compensation for tbe injury it has inflicted.
¶4concurring. The doctrine of mental anguish which has been recognized and applied in this Court for many years, either has no scientific or rational basis upon which to rest so as to justify a recovery by father, brother, husband, or any other person bound to another by a close tie of blood or marriage, of damages from a telegraph company *469for tbe negligent failure to deliver a message, or the rulings and judgment in this ease must be free from error. We cannot deny to the plaintiff the right to recover any damages which he may have sustained, unless we completely repudiate the doctrine, reverse our former decisions and deny to everybody the right to recover damages for mental anguish caused by the negligence of a telegraph company in delivering messages. When we once admit the correctness of the principle upon which such recoveries have been based (and this has been done at the present term in Cogdell v. Telegraph Co., and Hood v. Telegraph Co., and at the February Term, 1902, in Meadows v. Telegraph Co., 132 N. C., 40, and Bright v. Telegraph Co., 132 N. C., 317, by a unanimous court), we must carry this admittedly correct principle to its legitimate and logical conclusion and to its necessary consequence, and permit a recovery by any one, without regard to the closeness of relationship, who can show the negligence and that mental anguish proximately resulted therefrom.
¶5The doctrine, as stated in the former decisions of this Court, could not have been restricted to close relationship, but in its very nature extended to those which are remote, as it was founded upon a breach of public duty by the telegraph company, which duty required that messages should be transmitted and delivered with reasonable care and dispatch and with due regard for the rights of the patrons of the company. The public is vitally interested in the performance of this duty and, whenever there is a breach of it, the right to recover damages flowing from the breach depends upon the ability of the party who alleges that he has been injured by the failure of duty to prove his actual- damages, which include damages for mental anguish, and may consist solely of such damages. Cashion v. Telegraph Co., 123 N. C., 267. It is a question of proof, and not one of close relationship, which determines the right to recover damages for the injury. *470We can imagine a case where there is no relationship, and yet where the parties are quite as closely united and bound to each other by ties of affection as if a close relationship existed. The closeness of the relationship does not of itself necessarily prove that there has been mental anguish where there has been a negligent failure to deliver a message. It is a circumstance to be considered by the jury in- determining whether or not there has been any mental suffering, and this Court has said that the relationship of the parties may be so close as to raise a presumption of mental anguish and consequent damage. The doctrine, as established by the former decisions of this Court, is that mental anguish may be the basis for the recovery of damages without regard to the particular relationship of the parties. The relationship was referred to merely as being evidence of mental anguish, which is strong or weak, according to the degree of relationship. It was never intended to assert that a person who is not closely related by blood or marriage to the person whose sickness or death is announced in the message cannot recover if mental anguish actually resulted from the default of the defendant. Take the case of a person who is but slightly related to the person whose sickness or death is announced in the message, but who stands towards him in loco parentis. Should he be denied the right to recover when a son, between whom and his father there has been long estrangement and bitterly hostile feelings, is permitted to recover for failure to deliver a message announcing his father’s sickness or death, merely because he and his father are closely related by blood 1 I go back to my first proposition: The doctrine is either fundamentally wrong, of if it is right the idea that it is confined to close relations must be abandoned, as, in my judgment (and I say so with the utmost respect for the opinion of others), it has nothing to sustain it. If the doctrine established by our former decisions is wrong, it should be promptly *471reversed, and tbe cases in which it was established should be overruled; but if it is right, it should be enforced by a reasonable and, above all things, a logical application of the principle on which it rests to the facts of each case as presented. I can see no middle ground upon which we can safely stand. We are either right in this particular case or we are wrong altogether. If the doctrine is limited in its operation, as suggested, I cannot give my assent to it at all, for there must be something radically wrong in a principle which cannot be safely carried to its logical results, so as to reach all cases coming fairly within its scope. If the reason upon which the doctrine is founded applies to one case, it must apply to all, leaving the degree of kinship to affect only the amount of the damages. The insuperable difficulty which it is admitted will be encountered in drawing the line at which the doctrine must cease to have any application, is a cogent reason for the assertion that there is no limit to the doctrine if it was a sound one in its origin. It is replied that the line at which there ceases to be a presumption of mental anguish cannot be drawn with any accuracy. This may be a reason, not for questioning the correctness of the doctrine, nor for limiting it in its operation, but merely for denying that there is any such presumption. It may be that it would be more correct to say that relationship is a fact or circumstance to be considered by the jury as evidence of mentaL anguish, which will be stronger or weaker in its probative force in proportion to the degree of relationship, whether near or remote. My conclusion is that if we are to continue to recognize and enforce the right to recover for mental anguish, the principle which ■ underlies and supports that right cannot be confined to any merely arbitrary limit, but must be applied to any case in which a negligent failure to deliver a message may cause mental suffering.
¶6If the principle has no proper place within the borders of *472our jurisprudence, we should drive it out at once as an unwelcome intruder, and not expel it by gradually limiting its sphere of operation or by a slow process of elimination. I repeat: The doctrine of mental anguish, as it is called, is either radically wrong, or it applies to the facts of this case.
¶7dissenting. The doctrine by which the sendee of a message was held to be entitled to recover for failure to deliver promptly, in addition to nominal damages, compensation for mental anguish, was first established by this Court in Young v. Telegraph Co., 107 N. C., 371, 9 L. R. A., 669, 22 Am. St. Rep., 883. The message in that case announced the extreme illness of the sendee’s wife and urged him to “come in haste.” As the facts appeared in the record they appealed strongly to the feelings of the Court — the negligence was gross. The doctrine then established has been fruitful of much litigation. Many of the cases have shown gross negligence, and some of them most aggravating and intense suffering caused thereby. Whatever may be my opinion of the scientific basis of the doctrine, I have no disposition to regard it as an open question in this Court. It is settled here. No one who has given the question careful thought can fail to be impressed with the difficulty of giving it a satisfactory practical operation. To estimate and separate in dollars the quantum of suffering, mental and otherwise, a person experiences by reason of learning of the death and of being unable to attend the funeral of a deceased relative must give to a conscientious juror much difficulty. 1 cannot but think that if the Judge who, with great lucidity, lays down the principle, were called upon to apply it, the doctrine would not find so much favor. However this may be, the best answer to the objection that it is difficult to do is found in the fact that it is done. The only question presented by the appeal in this case is whether a doctrine originating in the case of an absent husband summoned to the *473death-bed of a dying wife, and applied to other and more distant relatives, is to have any limit whatever, I fully recognize how difficult it is to fix the limit. As I understand the cases, within a certain limit the^e is a presumption that the plaintiff sustained mental anguish, as in case of a brother. Cashion v. Telegraph Co., 124 N. C., 459. Beyond this limit there is no presumption, but the plaintiff must retain in his memory, and, months after the injury, unfold his mental condition to the jury to enable them to say how many dollars will compensate him. The Court says: “Damages for mental anguish are purely compensatory and should never exceed a just recompense for the anguish.” If it be said, as it certainly is, that it is difficult to say within what degree of relationship the sendee has a cause of action, it may be answered that it is not more so than to say within what degree there is a presumption of mental anguish. It is said that fictions in the law “have had their day,” and “have been dead thirty-five years.” It would seem, with all possible deference, that the doctrine of mental anguish, with its logical results, is not very far removed from the domain of legal fiction.
¶8I cannot concur in the conclusion reached by the Court in this case. It may be that the Court is committed to an unlimited field of litigation in these cases. I do not care to review the cases. I simply wish to say that in my opinion if any limit is ever fixed, the plaintiff’s case will fall far beyond the outside boundary. It is difficult to discuss these cases. Men view such matters so differently that they may not easily make themselves understood. If it is desired to compel the defendant company to discharge its duty to the public with all reasonable promptness and dispatch, there can be no doubt that the Legislature has the power by appropriate legislation to do so.
¶9I do not think that the plaintiff in any respect of the testimony is entitled to recover for mental anguish.