Written charge numbered two requested by defendant, which was refused, properly raised the question of the right of the plaintiff to recover for mental suffering on account of the failure of the addressee of the message, who was a physician, to reach plaintiff’s sister in time to administer to her condition before her death. This question was also sought to be raised by motion to strike from the several counts of the complaint certain allegations, which was overruled. If these damages are not recoverable, as matter of law, then the allegations of the complaint sought to be stricken are immaterial and, therefore, surplusage, and taking issue upon the complaint and proof of these allegations would net entitle plaintiff to recover. The overruling of the motion was a matter within the discretion of the trial court and not revisable. — Marx v. Miller, 134 Ala. 347.
The charge, howeter, as we have said, properly raised the question and brings for review the correctness of the ruling of the court as to whether such damages, as matter of law on the facts averred, are a proximate result of the *590breach of the contract to' transmit and deliver the message. On this phase of the case the appellant’s contention seems to be that the relation of brother and sister is not sufficiently close so as to malee such damages proximate, but that they are speculative and remote.'
In Henderson’s case (89 Ala. 510), the message was sent by the husband to a physician, and it was held that his mental anxiety or distress, caused by the non-delivery through the negligence of the defendant, were recoverable damages.
In the more recent case of W. U. Tel. Co. v. Ayers (131 Ala. 391), the relation of brother and sister was classed with that of husband and wife, and parent and child, and we think properly so.
If a husband or father is permitted to recover for mental distress on account of a breach of the contract, thei’e is no good reason for denying to a brother a right of recovery for a like breach. If the damages are proximate in the one case, they are in the other’. Such damages are held to be proximate on account of the relation of the parties and the natural affection presumed to exist between them. The same affectionate relation is presumed to exist between brother and sister, as between husband and wife, or parent and child, differing it may be in degree. The charge was. properly refused, unless it can be affirmed as matter of law, on the testimony adduced, that Dr. Harris, the addressee of the message, could not have reached the bedside of the plaintiff’s sister before her death, had it been promptly transmitted and delivered. And the solution of this question also determines the correctness of the giving of the first written charge at the request of plaintiff.
We feel no hesitancy in saying that, under the evidence,' whether Dr. Harris could or could not have reached plaintiff’s sister’s bedside before her death, had the message been promptly transmitted and delivered, was a question for the jury. If he could, and it was open to the jury to so find, then the damages for mental suffering were recoverable, and the charge above referred to, requested by defendant, was properly refused. On the other hand, it was open to the jury to find that he could not have done so. This being true, the giving of charge *591numbered one requested by plaintiff was error. By that charge the jury were instructed, if they believed the evidence, they should return a verdict for plaintiff for the actual damages sustained by reason of the failure to transmit and deliver the telegram. That damages for mental suffering are actual, and were therefore included in the instruction, can scarcely be doubted. Indeed, it is because they are act.'a!, that they are recoverable. They are compensatory for the injury resulting from a breach of the contract, or duty, as the case may be. — W. U. Tel. Co. v. Adair, 115 Ala. 441 ; A. G. S. R. R. Co. v. Davis, 119 Ala. 572; 3 Sutherland on Damages, § 942. The charge clearly invaded the province of the jury.
The evidence undisputedly showed that the message was never delivered at all. This entitled the plaintiff to recover, at least, nominal damages for a breach of the contract. Charges 1 and 3 requested by defendant were, therefore, properly refused. Had these charges on the facts hypothesized in them excluded plaintiff’s right to recover damages for mental suffering, instead of directing a verdict for defendant, they would have ascertained a correct proposition of law.
The otljer written charges refused to defendant were requested, not separately, but as a whole. If any one of them was correctly refused, there was no eiror in refusing all of them. One of these was the general affirmative charge, which, of course, could not have been properly given.
Reversed and remanded.
McOrerran, C.' J., Simpson and Anderson, J. J., concurring.