after stating the case: The plaintiffs could not recover substantial damages unless they established the fact that H. H. Kivett could and would have reached home in time for his brother’s funeral, if the telegram, had been promptly delivered. His evidence on this point was, therefore, material, and we do not think it is subject to the criticism of the defendant, that the witness was stating an opinion, not a fact, and that he does hot .show that he was familiar with the schedules of the trains. He does not use the word “schedule,” but says he had made the connection between Detroit and Dunn once, and knew the movement of the trains. We think the evidence competent.
It was also competent for him to testify that his deceased brother, had stayed with him, in the West, three years, as bearing upon the relationship between them.
While mental anguish will be presumed under conditions presented by this record, when the relationship is that of brothers, this does not exclude other evidence tending to prove a close association between them.
The third and fifth prayers for instructions were substantially given in the charge of the court, and we think there was no error in denying the others.
The first of these prayers, if accepted as law, would relieve the telegraph company from any duty to make inquiry for the sendee of a message, when the street address is given, further than at the place indicated by the address, and is opposed to the *306doctrine in Hendricks v. Tel. Co., 126 N. C., 312, where it is held that, although a telegram is sent in care of another person, it is not sufficient to make inquiry at the place of business of such person, if not delivered to him.
The rule contended for, if sustained, might relieve the defendant from liability in this case, but it would result in imposing additional burdens and expense on it, because under such a rule no one would add a street address to a telegram, and the defendant would have to search a city for a sendee.
Again, there is no evidence that the defendant “offered” the message at the boarding-house. On the contrary, the keeper of the house testified that she told the messenger boy she would pay for the message, and he said it must be delivered personally, and she was not contradicted.
The second prayer could not have been given, because there was no evidence of a delivery at the motor works. The only witness on this question was Mary Nolan, who was in charge of a branch office of defendant in Detroit, and who testifies to no fact except that she gave the message to a messenger boy, who was not a witness.
• The fourth and eighth prayers relate to the conduct of the plaintiff, and, if containing correct statements of law, should have been directed to issues on contributory negligence, instead of to the issue of negligence.
The fact that the defendant did not tender an issue on contributory negligence is very strong evidence that it did not arise.
It would seem that if he had attempted to postpone the funeral, it would not have availed him, as he had to communicate with his father by telegraph, and he sent a telegram which was not delivered.
The court could, with propriety, have given the sixth and seventh prayers, but the refusal to do so is not error.
The plaintiffs did not seek to recover damages for failure to deliver the telegram sent from Detroit, and the charge clearly and explicitly confines the jury to the consideration of the telegram sent from Buie’s Creek.
*307Tbe issues submitted by tbe court are almost identical witb those wbicb were approved in Dobson v. Tel. Co., 152 N. C., 766, and enabled tbe plaintiffs and tbe defendant to present tbeir contentions before tbe jury.
“It is not material in wbat form issues are submitted to tbe jury, provided they are germane to tbe subject of tbe controversy and eacb party bas a fair opportunity to present bis version of tbe facts and bis views of tbe law, so tbat tbe case, as to all parties, can be tried on tbe merits.” Wilson v. Taylor, 154 N. C., 215.
Tbe record does not disclose tbat an exception was taken to tbe conversation witb tbe agent of tbe defendant, wben tbe plaintiff called at tbe telegraph office about 6 o’clock and asked if there was a telegram for him; but in any event we think tbe evidence is competent, because tbe declarations were made in furtherance of a duty tbe agent was then performing for tbe defendant.
There was evidence of negligence, and tbe motion to nonsuit could not have been allowed.
No error.