dissenting. 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.
I 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.
I do not think that the plaintiff in any respect of the testimony is entitled to recover for mental anguish.