CLARK, C. J., dissenting, arguendo. Action to recover damages for delay in delivering a telegram. It is alleged in the complaint that Mrs. Hattie Hastings died on (337) 1 January, 1907, at 8 o'clock p. m., and J. D. Rogers, a relative, at 5 o'clock a. m., on 2 January, 1907, requested the defendant's operator at Huntersville, N.C. to send a message to John Holler and wife, who lived at Morrisville, N.C. notifying them of Mrs. Hastings' death, and paid the charges therefor. The operator was told that Mrs. Hastings was a sister of Mrs. Holler. He wrote the message for Rogers and agreed to transmit it, but it was delivered at Morrisville too late for Mrs. Holler to reach Huntersville, or the place of burial, before the funeral, by reason of which she suffered mental anguish and is entitled to recover damages therefor. The message, as written by the operator, was as follows:
HUNTERSVILLE, N.C. 2 January, 1907.
To John Holler,
Care of Bob White, Morrisville, N.C.
Hattie died at 8 o'clock last night. Bury this afternoon.
J. D. ROGERS.
The defendant admitted that it had received and transmitted the message as above set forth, but denied the other allegations of the complaint. There was evidence tending to sustain the plaintiff's allegations.
Issues were submitted to the jury, which, with the answers thereto, are as follows:
1. Did the defendant negligently fail to transmit and deliver the telegram as alleged in the complaint? Answer: Yes.
2. Did the sender of the telegram, Rogers, make known to the defendant at Huntersville at the time the telegram was filed for transmission the relationship existing between deceased, Hattie Hastings, and Maggie Holler? Answer: Yes.
3. If the said telegram had been delivered without delay, (338) could and would the said Hattie Holler have attended the funeral of Hattie Hastings? Answer: Yes. *Page 247
4. What damage, if any, is plaintiff, Maggie Holler, entitled to recover? Answer: $500.
Exceptions were taken to several of the court's rulings, but it is not necessary to state but one, which is the exception to the rendition of judgment for the plaintiff, Maggie Holler, upon the verdict. Defendant appealed. After stating the case: Issues must be so framed that, when answered, they will be sufficient to support the judgment. "We are not inadvertent to the long line of decisions laying down the rule that the refusal of the court to submit an issue tendered by either party can not be reviewed by this Court unless exception is taken in apt time; nor do we wish to be understood as reversing or modifying it. That rule, when reasonably construed, does not conflict with the one herein laid down. What we now say is, that Code, sec. 395, is mandatory, binding equally upon the court and upon counsel; that it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that, in the absence of such issues or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment rendered therein, this Court will remand the case for a new trial. Under this rule there was error in the rendition of the judgment, and a new trial is therefore ordered." Tuckerv. Satterthwaite, 120 N.C. 118. That case has since been approved.Straus v. Wilmington, 129 N.C. 99; Hatcher v. Dabbs, 133 N.C. 239;Kelly v. Traction Co., ibid, 418. In Falkner v. Pilcher, 137 N.C. 449, the rule was stated thus: "It may be conceded as a general (339) proposition that a party can not complain because a particular issue was not submitted to the jury unless he tendered it, but the rule is subject to this qualification, that the issues submitted must in themselves be sufficient to dispose of the controversy and to enable the court to proceed to judgment, for in that respect the duty of the court to submit issues is mandatory."
It follows that if the issues in this case were not sufficient to warrant the judgment which was rendered, there was error for which a new trial must be awarded. The judgment was rendered in favor of the feme plaintiff, Maggie Holler, alone, and the verdict, in our opinion, did not authorize it. There is no finding that Mrs. Holler had any beneficial interest in the message which the law recognizes as sufficient to sustain an action for damages when there has been negligence on the part of *Page 248 the telegraph company in its transmission, which has caused the plaintiff mental anguish and consequent damage. In Helms v. Telegraph Company,143 N.C. 386, Brown, J., for the Court, says: "The right of the sendee to recover of a telegraph company for error or negligence in the transmission or delivery of a telegram is altogether denied in Great Britain. Playford v. Tel. Co., L.R., 4 Q. B., 106. In this country the English doctrine does not generally prevail. Here the weight of authority holds that the sendee may recover in his own name such damage as he may have sustained by reason of negligence when the message was intended for his benefit, and it was apparent on the face of the message or the company had knowledge of it. 2 S. R. Neg. (5 Ed.), sec. 543; Joyce Elec. Law, sec. 1008; Frazier v. Tel. Co., 67 L.R.A., 320." But we think this case is in principle not unlike Cranford v. Telegraph Co.,138 N.C. 162, in which we said: "There can be no recovery of damages for delay in transmission and delivery, where it does not, in any way, appear that the plaintiff was an intended beneficiary of the message. (340) We could not well hold otherwise without subjecting the defendant to liability for damages alleged to have been sustained by those who are strangers to its contracts, and to whom it owed no duty whatever. The mental anguish suffered by the feme plaintiff can not, under the facts and circumstances of this case, be traced to any wrong committed by the defendant. There is no causal connection between the breach of the duty owed by the defendant to N. P. Cranford and the anguish of his wife, which resulted from her failure to be present at the funeral of her grandchild, and for it, therefore, the law awards no compensation. It is not every one incidentally suffering a loss from the negligence of another who can maintain an action upon that ground. It has been said that there would be no bounds to litigation if the ill effects of the negligence of men may be followed down the chain of results to their final attenuated effect." An analogous doctrine is laid down in Williams v. Telegraph Co., 136 N.C. 82, in which it is said: "The principle uniformly sustained by the cases upon the subject, some of which we have cited, is that, unless the meaning or import of a message is either shown by its terms or is made known by information given to the agent receiving it in behalf of the company for transmission, no damage can be recovered for failure to correctly transmit and deliver it beyond the price paid for the service." We may well add what is so well stated in Squire v. Telegraph Co., 98 Mass. 237, that "a rule of damages which should embrace within its scope all the consequences which might be shown to have resulted from a failure or omission to perform a stipulated duty or service, would be a serious hindrance to the operations of commerce and to the transaction of the common business of life. The effect would be to impose a liability wholly *Page 249 disproportionate to the nature of the act or service which a party has bound himself to perform, and to the compensation paid and received therefor." (341)
Let us apply these principles to the case in hand. The complaint alleges that the message was intended for John Holler and his wife, whereas the message, as sent, was addressed to John Holler alone, and, further, that the operator of the defendant was notified that Mrs. Hastings and Mrs. Holler were sisters. The defendant denies these allegations, except the allegation that the message was addressed to John Holler, and avers, in this connection, that the message so addressed was the only one received and transmitted by it. These allegations and denials raised issuable facts, and there is no finding that, in a legal sense, the message was sent to Mrs. Holler or for her benefit, or that she had any interest in the message which entitles her to recover damages for mental anguish, alleged to have been caused by the negligence of the defendant. The mere fact that she was related to the deceased, even though she was her sister, is not of itself sufficient to impose upon the company any legal duty or obligation to her. The nearness of the relation does not supply the missing link in the chain of causation, for the defendant can not be said to have caused the alleged injury to her unless, by its contract, it was, in law, obliged to prevent it, or omitted to perform some legal duty to her, which omission was the proximate cause of the injury. If any person who was related to the deceased can sue for damages, even if not mentioned in the message, and without any showing that he is, in a legal sense, a beneficiary of the message, or one to whom the company owed a legal duty, a liability would be imposed "wholly disproportionate to the nature of the act or service" which the company has bound itself to perform, and the aggregate recovery might be almost unlimited; a principle which would lead to such a result cannot be sanctioned by law. Our case in this respect comes directly within the rule we approved in Cranford v. Telegraph Co., supra. In that case it appeared that Mrs. Cranford was related to the deceased child, being her grandmother. We held that the relationship alone did not entitle Mrs. Cranford to sue for damages resulting from mental (342) anguish; and we so hold in this case, that the verdict by which the jury find merely that the feme plaintiff was related to Mrs. Hastings, being her sister, without also finding that she was the legal beneficiary of the message, is defective and no judgment for the plaintiff can be based thereon.
The plaintiffs allege in the complaint that the defendant undertook to transmit and deliver the message addressed to John Holler, having knowledge that it was intended for the benefit of Holler and his wife, and also that Mrs. Hastings and Mrs. Holler were sisters. It is also *Page 250 alleged that the message which was actually delivered too late (at about one o'clock p. m.) was the one addressed to John Holler. The allegation that the defendant undertook to transmit and deliver the message, addressed to John Holler, is admitted in the answer, and the other allegations are denied. The charge of the court upon the first issue was confined to the transmission and delivery of the message addressed to John Holler, as will appear from the following instruction:
"So on the first issue, to repeat, if you are satisfied by the greater weight of the evidence that the message, which has been offered in evidence, was delivered to the defendant's agent at Huntersville at six o'clock, or about six o'clock, in the morning, and was not transmitted and delivered to the sendee, John Holler, until 12:34, or about one o'clock, as you may find from the evidence, in the afternoon of the same day, then the court charges you that the duration of the time which elapsed between the time when the message was delivered to John Holler, or to the person in whose care it was sent, would be unreasonable delay, and in the absence of some explanation, it would be your duty to answer the issue Yes; otherwise answer the issue No.
The first issue, by its very terms, relates to the transmission and delivery of the message, and not to any error in wording it, and (343) the pleadings and case on appeal show that it was so understood by the parties and the court, and by the jury, if it be necessary to consider anything but the issues themselves and the answers thereto, in order to determine what the verdict is.
It follows that there was error. The verdict must be set aside and a new trial awarded.
New trial.