dissenting: I am unable to agree with my brethren in the disposition made of this case. I am of opinion, first, that the motion to nonsuit should have been allowed, and, second, that there was error committed, and a new trial should be awarded.
1. The facts taken, in any light, do not show a case where a recovery for mental anguish should be allowed. The right to recover damages for mental anguish, not growing out of physical injury, is the settled law of this State, although the wisdom of permitting such recovery is denied by some of the ablest courts in the country. No one has ever contended that the damages are punitive in character. They are purely compensatory and are allowed for acute mental suffering. Anguish is defined to be “intense pain of body or mind” and is derived from anguis, a snake, referring to the writhing or twisting of the animal body. Hancock's case, 137 N. C., 501. We find no case where such damages are allowed for mere disappointment. This view of what constitutes that degree of mental suffering, for which actual or compensatory damages may be had, is endorsed by this court in Hancocks case and also in Eunters case, 135 N. C., 459. The opinion in Eunters case was written by Justice Douglas, who cannot be said to have unduly favored the telegraph companies.
The facts in this case, with which the defendant is connected, disclose nothing that should cause any feeling at all approximating anguish in the mind of a man of ordinary courage and self-possession. Doubtless the chief anxiety of the plaintiff arose from the fact that he had been guilty of such gross negligence as to supply his wife with only money enough to purchase a ticket from Durham to Washington, with nothing to buy bread with in case of an accident. When the plaintiff discovered at Paetolus that his wife and children were not on the train, common experience should have taught him that they had missed connection and that there were no reasonable grounds for serious apprehension. Knowing that *90bis wife was penniless, he naturally became alarmed. But that was his own fault. Had he supplied her with funds there would have been no occasion for great anxiety, much less anguish. There is nothing on the face of the message to put the defendant on notice that mental anguish might ensue if it was not promptly delivered, and what Mrs. Dayvis said to the operator at Weldon was not sufficient for that purpose. The “solemn issues of life and death” were not involved, nor serious illness, nor any of'the usual circumstances disclosed, which indicated that great mental suffering might be caused by delay in its delivery.
Mrs. Dayvis testified that she took the wrong train at Rocky Mount and went on to Weldon and there filed the telegram set out in the record. She states, “I told the operator I had been thrown over at Weldon; had two children with me; they were sick; my husband was to meet me and would be worried unless he got the message.” There is nothing here to put any one on notice that, what this court has defined mental anguish to be, would probably result from a failure to deliver the message.
The conclusion of Mrs. Dayvis, that her husband would' be worried, is immaterial. Worry is not sufficient to justify a recovery. Erom the message and disclosure,of Mrs. Day-vis, the defendant could draw only natural and reasonable inferences, which inferences would be that an ordinarily robust husband with ordinary self-control is waiting for hi3 wife and children, and if he fails to meet them, he will take a common sense view of the matter and conclude that they are delayed somewhere en route, as is often the case. The company cannot foresee the result of its negligence due to facts not brought to its attention. It was not disclosed to the company, nor is it shown that the company was aware of ,the fact that Dayvis knew his children were sick or that his wife was without money; and these facts are stated by the plaintiff to be the real ground of his suffering. On cross-*91examination be said be knew bis wife -would be uncomfortable; tbat be did not want bis children suffering, because be knew tbey were sick; tbat be was worried because tbey did not come and because tbey did not have money enough to pay their expenses. Of these causes of bis suffering, only one was brought to the attention of the company, tbat is, because bis' wife and children did not come. Could the company reasonably assume tbat this alone would likely cause him mental anguish ? If not, then bis suffering could not have been in the contemplation of the parties and the plaintiff should have been nonsuited.
On redirect examination, the plaintiff testified tbat bis anxiety, because be feared his wife and children might be inconvenienced and uncomfortable, was the chief cause, and in fact the only cause of bis suffering. It has often been held tbat distress, because of the discomfort of another, cannot be held the basis- of an action for mental anguish. Tel. Co. v. Stratemire, 32 N. E., 871 (Ind.); Tel Co. v. Cooper, 71 Texas, 507. Any misapprehension suffered by the plaintiff, as to the meaning of the failure of bis wife and children to arrive when expected, though resulting in mental anguish, cannot be made the basis of a recovery of damages. Bowers v. Tel. Co., 135 N. C., 504; McAllen v. Tel. Co., 70 Texas, 243.
2. There has been great trouble in ascertaining the ground on which telegraph companies may be held liable to the addressee of a telegram, not a party to the contract. Different views are advanced by courts and law writers, but this court seems to have adopted the contract theory. That being so, there must be some reasonable measure by which damages can be awarded. Doubtless having this in view, this court in Sparkman’s case adopted the rule of the Texas Supreme Court and held that “a telegraph company is not to be held liable in compensatory damages for its failure to forward or deliver a message intended to relieve mental anxiety then *92existing in the mind, of tbe sender.” In Rowell’s case, 15 Texas, 26, the rule is applied to the sendee. It is impossible for a jury to measure in damages the extent to which the sendee may be injured by failure to relieve existing anxiety, for which the company cannot be held liable. The jury cannot well discriminate and distinguish between the anguish existing and that which might have been relieved.'
In this case, the plaintiff was already, as claimed, suffering anguish. He ascertained at Pactolus that his wife and children were not on the train. He could not get a telegram until he reached Washington. Had he received the telegram what would he have learned? Only where they were. He would still have suffered all the distressing anxiety growing out of the knowledge that his family were in a strange town, sick and penniless, owing to his own improvidence. How can a jury under such circumstances measure the inental anguish for which the defendant may be liable, and distinguish it from the existing as well as continuing anxiety for which the defendant is not liable? The Texas court is advanced in its views on these questions, and having adopted its rule in Sparkman’s case, I see no reason to overrule it.
3. It is admitted that the court erred in admitting improper testimony. I do not think the court below corrected its error. A careful reading of the attempted correction contained in the charge satisfies me that the jurors were permitted still to consider the mental anguish suffered by the plaintiff, growing out of a knowledge of his family’s sick and penniless condition. This was well calculated to prejudice the defendant, and doubtless increased the damages which seem to be more than ample compensation for such anxiety, as a reasonably self-contained man should have suffered under the circumstances of this case, omitting those conditions for which the defendant is admittedly not responsible.