(dissenting.) In this case I think there was sufficient evidence to go to the jury on the question of notice to the company of the special circumstances of the case to render it responsible for the mental anguish resulting from a failure to promptly deliver the message. The message was to a physician, and his title given; its subject-matter was an operation, and the sender told the operator that it was important. Notice to the operator is notice to the company. 27 Am. & Eng. Enc. Law, 1061.
It was not necessary to tell the operator the diagnosis of the physician nor the gravity of the operation. If the profession of the addressee, the subject-matter of the telegram and the statements of the sender were sufficient to give notice to a man of ordinary common sense that the message was dealing with sickness, a dangerous operation or other distressful incident, then the company was sufficiently informed of the special circumtances to render it liable for mental anguish flowing from its failure to promptly deliver. Kennon v. W. U. Telegraph Co., 126 N. C. 232; Darlington v. Western Union Tel. Co., 127 N. C. 448; Western Union Tel. Co. v. Church, 57 L. R. A. 905; 27 Am. & Eng. Enc. Law, 1064.
Therefore the court was correct in modifying the 6th instruction as asked by appellant, and leaving this matter to the jury.