St. Elmo and Grand Bay are two stations on tbe line of roads operated by tbe Louisville and Nashville Railroad Company. They are five miles apart, and are small villages. Louis Henderson resided near St. Elmo station, and Dr. Robmer, bis family physician, resided near Grand Bay station. At noon, June 26, 1887, Henderson procured to be dispatched at St. Elmo, to Dr. Robmer at Grand Bay, a telegraphic message in tbe following language: “Come first train to see my wife; very low.” This message was marked pre-paid, 25 cents. In addition, both the sender and *515the telegraphic operator testified that that sum was prepaid. The operator testified, that Henderson inquired what the charge was, and, on being informed it was 25 cents, paid it, to him. The message, though not repeated, reached the operator at Grand Bay, without mistake, and without delay.
Dr. Bohmer testified, that he received this telegram about 9 o’clock A. M., June 27, the day after its transmission; that it was handed to him at his residence, but he did not state by whom. He testified further, that if he had received the message on the 26th, he would have obeyed it, travelling either by train, or by private conveyance. He reached the patient about noon on 27th, and relieved the intensity of her suffering; but she died about six hours afterwards. He did not know whether, if ho had reached her the day before, her life could have been saved. Plaintiff testified, that when the telegram was sent, his wife was suffering acutely, and that her suffering increased until the arrival of the doctor, when he alleviated it.
The present action was brought to recover damages for the non-delivery of said telegram within a reasonable time. The defendant interposed five pleas in bar, but, at present, we propose to consider only those on which issues of fact were formed. These are pleas 3 and 4. A demurrer was interposed by plaintiff to each these pleas, 3 and 4, and the demurrers were overruled. There was no error in this.
In the printed caption of all messages sent by the telegraph company, are certain conditions on which the company receives and transmits messages, and no message is received or sent, unless it is written on the company’s blank, preceded by the conditions. The message in this case was written on the company’s blank, and was preceded by the printed conditions. One of the conditions is, that “the company will not be liable for damages in any case, where the claim is not presented in writing within sixty days after sending the message.” Plea No. 3 set up this condition, and averred that the claim here sued on was not presented to the company within sixty days after sending the message. To this plea plaintiff filed a replication, averring that, in less than sixty days after the message was sent, the present suit was brought, a complaint filed setting forth the claim of damages for non-delivery of the message, and service of a copy of the complaint on the defendant corporation — all within sixty days. To this replication the defendant demurred, and th e court overruled its demurrer.
*516There are decisions which hold, that a suit setting forth the ground of complaint, instituted, and process upon it served within the sixty days, is not a compliance with this regulation. — Wolf v. Wes. Un. Tel. Co., 62 Penn. St. 83; Wes. Un. Tel. Co. v. McKinney, 8 Amer. & Eng. Corp. Cas. 123. Snch regulation is generally held to be valid and binding. — Grinnell v. W. U. Tel. Co., 113 Mass. 299; Young v. Same, 65 N. Y. 163; W. U. Tel. Co. v. Rains, 63 Tex. 27; Fire Ins. Co. v. Felrath, 77 Ala. 194. Our own rulings, on a question not distinguishable from this in principle, have been different. — E. T., Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150; S. & N. R. R. Co. v. Morris, 65 Ala. 193; Same v. Bees, 82 Ala. 340. The Circuit Court did not err in overruling the demurrer to the replication to the defendant’s third plea. The averments of that replication being unquestionably true, as shown by the record, that line of defense will receive no further consideration.
On the trial of ■ this cause, the real controversy, both in fact and law, so far as the mere right of recovery was concerned, arose on the issue raised by the 4th plea. That plea sets up as a defense to the whole action, that the defendant corporation had established a limit within which it undertook to make free delivery of messages sent over its wires, which limit was a half-mile, or radius of a half-mile from its office, at places having the population that Grand Bay had; that in the said printed heading, which accompanied, and formed part and condition of every written message it received for transmission, including the one received in this case, was and is the following clause: “Messages will be delivered free within the established free-delivery limits of the terminal office; for delivery at a greater distance, a special charge will be made to cover the cost of such delivery”; and that Dr. Rohmer, to whom said message was sent, did not live within the said free-delivery limits of said office. The plea then avers that no consideration was paid or tendered by plaintiff for the delivery beyond the free-delivery limits, and no notice was given by the sender, nor did the telegraphic operator know, that Dr. Rohmer was not living within said limits. This plea was followed by much pleading, and many rulings of the court. We will not set out the various steps taken, but will declare the rules by which the relative duties of the parties must be determined.
Telegraphy is a quick-moving substitute for mail service, which, by contrast, has become tardy. Celerity is its boast, *517and when rapid communication is desired, its instrumentality is invoked. It can not be presumed that the operator at the initial or receiving office will know every one to whom a message is proposed to be sent through his office, or will know that such person will be found within the free-delivery limits of the terminal office. The sendee may live just without the limits, or he may live miles away. Placing the duty on the sender, of ascertaining whether the person to whom the message is addressed resides within the free limits, is a reasonable rule. It is reasonable, because in most cases the sender will know where the sendee resides, and can inform the operator. In the event the sender does not know the residence or business office of the sendee, it is but .reasonable to require him to inform himself, or to make provision for delivery beyond the limits, should it be found that the residence is beyond them. This is placing the duty where it is both reasonable and bearable, iustead of imposing an intolerable burden on the operator, or company. The reasons will suggest themselves without being stated. The rule is reasonable, and law is, or should be, reasonable.
When Henderson applied to have his message sent, if Dr. Bohmer lived more than a half-mile from the terminal office, he should have so informed the operator, if he knew it, or could learn it; and if he was in doubt whether the doctor lived within the limits, he should have informed the operator, and made provision for delivery beyond the limits, if he desired and expected prompt delivery. When a message is handed in for transmission, the presumption must be, and is, that the sendee lives within the limits of free delivery, or that the sender takes the risk of delivery, unless he makes arrangements for delivery at a greater distance. And handing in such message, without explanation, casts no duty on the transmitting operator, other than to forward the message accurately, and with proper diligence. And it casts no duty on the terminal employee, or operator, other than to copy the message correctly, and to deliver it with all convenient speed, if the sendee reside within the free-delivery limits.
What we have said is intended for the government of the senders of all telegrams, whether intelligent or non-intelligent. All men are conclusively presumed to know the law, and no discrimination between classes can be maintained, either by the law, or by sound reasoning. The principle rests on juridical necessity.
*518It may as well be stated here as any where else, that the plaintiff, when testifying as a witness for himself, stated that he knew the rule of the telegraph company, which guaranteed free delivery if the sendee lived within a half-mile of the terminal office, and no further. And the testimony of the sending operator tended to show that, before sending the message, he inquired of the plaintiff how near the terminal station or office Ur. Rohmer lived, and he answered “close by.” Henderson gave no testimony in regard to this. No testimony was introduced tending to prove that any thing was said, either by Henderson or by the operator, having any reference to delivery beyond a half-mile. And we may here state, as proved and uncontroverted facts, that the charge, 25 cents, was pre-paid for sending the message, and that the plaintiff, Henderson, knew of the half-mile limit to free delivery.
The contested question of fact was, whether Dr. Rohmer’s residence was within a half-mile of the terminal office. Witnesses testified that there was a travellable and travelled road, which cut off an angle, and brought the distance within a half-mile. Other witnesses controverted the existence of any road which cut off the angle and shortened the distance. According to their testimony, Dr. Rohmer’s residence was not within a half-mile of the terminal office. This was a question for the jury, and, with a single exception, the Circuit Court submitted this question fairly to the jury. That question is the burden of proof.
Eree delivery within a half-mile is not a restriction of a right, but a qualified privilege granted. It is not an inherent right; for, if it were, in the absence of restriction, it would have no- limits. To show to what absurd results this would lead, let us suppose the contract to transmit a message is silent about free delivery. If we hold the clause in controversy to be restrictive of a right, then, in the case supposed, the telegraph company would be bound to deliver to the sendee, no matter how great the distance to his residence. Free delivery is a conditional obligation, contingent on the sendee’s residence being with the area of free delivery; and until that condition is shown, the telegraph company is not put in default. The onus of proving that Dr. Rohmer’s residence was within a half-mile was on the plaintiff. 8 Brick. Dig. 433.
Whether, in such a suit as. this, damages can be recovered for mental anxiety, or mental distress, caused by the non*519delivery of the message through the negligence of the telegraph company, is a question upon which the authorities are in palpable conflict. They are not alone in conflict — they are widely variant. Some rulings reject such evidence, in all cases which are based on breach of contract. Others reject it when there is no element of recovery other than mental suffering, but receive it in aggravation, when there is another independent cause of action. On this last principle, a distinction is taken, in some cases, between suits in which the sender is plaintiff, and those in which the sendee complains. In the one case, the suit is by a party to the contract, who can maintain an action for its breach, even though he may be able to recover only nominal damages. In the other, there is no privity of contract, and there can be no recovery except for actual damages proved. There is, therefore, in this case, if the rule be sound, an independent right of recovery, to which distress of feeling becomes an aggravating incident. There are still other authorities which hold that such evidence is admissible on general principles, and as an independent ground of recovery. We cite many authorities, but will not attempt to reconcile them. Nor will we comment on them further.— Wadsworth's Case, 6 S. W. Rep. 864, and 8 S. W. Rep. 574 (Tenn.); R. R. Co. v. Levy, 59 Tex. Rep. 542; Same v. Same, Ib. 563; Stuart's Case, 66 Tex. 580; Relfe's Case, 55 Tex. 308; Hays R. R. Co., 46 Tex. 272; Simpson's Case, 11 S. W. Rep. 385; West's Case, 7 Amer. St. Rep. 534-5, note; Shear. & Redf. Neg. § 756; 5 Amer. & Eng. Encyc. 42, note; Logan's Case, 84 Ill. 468; Turnpike Co. v. Boone, 45 Md. 344; Walsh v. Railway Co., 42 Wis. 23; West's Case, 39 Kans. 93; Russell's Case, 3 Dak. 315. The case of W. U. T. C. v. Cooper, 9 S. W. Rep., is a very peculiar one.
As to the element of mental anguish claimed to have been suffered by the plaintiff, we think it the proximate consequence of the failure to deliver the message, and that the perusal of the message would naturally suggest such consequence, as likely to ensue from the non-delivery. The right of the plaintiff to sue for the breach of the contract to deliver, if within the free-delivery distance, takes this case' out of the rule, if a sound one, that mental distress will not maintain the suit, when there is no other element of recoverable damage. We find no error in the rulings as to the proper elements of damage; and we agree with the Circuit Court in holding that there was no proof which authorized exemplary or vindictive damages.
*520In the light of the principles declared above, some portions of the general charge, which we have not referred to specially, and the charge given at the instance of the plaintiff, are subject to criticism; but we deem it unnecessary to comment further upon them. What we have said will furnish the proper correction. The 9th charge asked by defendant ought to have been given.
The message, for the failure to deliver which the present suit was brought, was not a repeated message. Pleas were interposed, and charges were asked, based on stipulations in regard to non-repeated messages, as set forth in the printed caption attached to the form, or blank, on which the message was written. The message, though not repeated, was correctly and without delay transmitted to the terminal office, and was there understood and copied accurately. This answered all ends repeating could have accomplished, and leaves that clause without practical operation in this case. None of the provisions, intended to be restrictive of liability on non-repeated messages, and none of the stipulations for exemption from the consequences of negligence, have any proper consideration in the determination of this case. W. U. Tel. Co. v. Way, 83 Ala. 1542; White’s Case, 14 Fed. Rep. 710; Tyler’s Case, 74 Ill. 168; 3 Suth. on Dam. 296-7. The demurrers to pleas 2 and 5 were properly sustained, and all charges seeking to raise the questions presented in those pleas, were properly refused.
The attempt was made in the trial court to excuse the telegraph company from liability for non-delivery of the message, on the ground that the business and emoluments of the office at Grand Bay were insufficient to justify the employment of a separate telegraphic operator, or a messenger boy to deliver messages. Belun’s Case, 8 Cen. Law Journal, 445, is relied on in support of this position. This may furnish a very good reason for withholding telegraphic service, or, perhaps, for different regulations in regard tó delivery, at places thus circumstanced. It affords no excuse for violating the terms of a contract. We can not follow Belun’s Case.
The defendant offered to prove in defense that it was not the custom of Dr. Rohmer to make professionals calls at a distance, without pre-payment, or guaranteed payment of his charges. This testimony, on objection, was ruled out. There was no error in this. If the doctor lived within the "area of free delivery, it was not for the telegraphic operator *521to speculate ou tbe chances that the summons would, or would not be obeyed. If it had been shown that Dr. Bohmer would not have obeyed if he had received it, this, it would seem, would have proved that the plaintiff suffered no real injury from the failure to deliver the message. So far from this being proved, Dr. Bohmer testified that, if he had received the message, he would have obeyed the call.
The natural utterances and expressions, indicative of pleasure, displeasure, pain or suffering, are competent, original evidence, that may be received in proof of the physical or mental state they indicate, whenever that state is a pertinent inquiry. — Wood’s Frac. Ev. § 147.
Two parts of the testimony received at the instance of plaintiff should have been rejected: first, the answer of the operator at Grand Bay, made on 27th, in reply to plaintiff’s inquiry, why the message had not been delivered; and second, that the Western Union Telegraph Company was a wealthy corporation.
We have now noticed every material question raised by the record.
Beversed and remanded.