I concur in the overruling of the suggestion of error and in the remanding of the cause for a new trial. The suggestion of error vigorously assails the statement of facts in the opinion of the majority of the court rendered upon the hearing of this cause, and contends that the court must have misunderstood the facts in the record. The record was in the consultation room for a long time prior to the first decision, and I read it thoroughly, and think every member of the court did, and, on account of the differences of views, the case was thoroughly considered, both as to the law and, the facts,- by each member of the court. On the filing of the suggestion of error I carefully re-read the record and the opinion of Judge Stevens; and find that the facts stated by Judge Stevens in the former opinion fairly present the record in this case. While the former opinion rendered by Judge Stevens is set aside, because, on this suggestion of error, it represents the views of one-half of the members of this court now, I desire to reaffirm my fullest concurrence in this opinion both as to the law and the facts. The telegraph company in the trial produced a number of witnesses in its behalf dealing with the telegram in question, and each undertakes to say that it was not his duty to see to the routing of the telegram, nor to take it up with any other agency by which it could have been transmitted. Some of the witnesses so produced testified ■that the person whose duty it was to see to the routing *421of the telegram was the person who received the telegram at the counter, which person was not produced..
It is perfectly apparent, from the record in this case, that if the telegraph company at Winona had called Kosciusko, to which office it formerly delivered messages to McAdams, and had made proper inquiry for connections with McAdams, the telegram could have been promptly delivered on the date on which it was sent. It is further perfectly apparent from the record that when the service telegram was returned to Nashville, informing the receiving office ’ that the telegram was not delivered "and that the Western Union’s connection with McAdams had been discontinued, the telegraph company could then have delivered the telegram over the lines of the Postal, and if this had been done the message would have been promptly received by the sendee, and all trouble avoided. On receipt of the service telegram at Nashville, informing that office that the Winona office could not deliver over the wires of the Western Union, some operator of the telegraph company called Mr. Thomas, night turnkey of the Tennessee State Penitentiary, and he was informed that it could not be delivered *by wire over the Western Union, but could only be delivered by mail, and he says:
“They said they could not deliver the message that night only by messenger, and I replied that the warden was not in the office just at that time, and I told them that I would call his attention to it. I also told them that the warden, of course, wanted the message delivered, or he would not have sent it. But I would .not assume the responsibility of the message.”
It does not appear anywhere in the record that any further effort was made by the telegraph company to deliver the telegram, nor was there any further effort to get in touch with the warden, who sent the message, to see whether he wanted it sent over the Postal or not. There can be no question in my opinion of this dereliction of duty being negligence amounting to wan*422.tonness and a disregard of the rights of the sendee in this important death message, showing on its face that the warden was requesting information and instruction as to the disposition of a dead body, which under the law (which the telegraph company must know) would be turned over to the anatomical board and dissected, and by such dissection that the sendee would be deprived of her rights as to- the custody and disposition of the dead body.
In the case of Western Union Telegraph Co. v. Jones, 69 Miss. 658, 13 So. 471, 30 Am. St. Rep. 579, this court held that it is within the scope of the operator’s agency to know to what places messages can be sent, and if he receives a message for a place through which the company’s lines run, and accepts pay therefor, agreeing to send it, the company will be liable for failure to transmit it, although it has no office in and does no business at such place. In this case a message was delivered to the Western Union Telegraph Company at Jackson, Miss., for transmission to Clinton, Miss. containing the following:
“Ella died last night. Send wagon. Have, grave dug. ’ ’
Ella was the daughter of the sender of the telegram ■and the telegram was addressed to the sender’s sister. The company undertook to deliver by phone after finding that it had.no office at Clinton; but the phone message was not delivered, and expenses were incurred in reference to the burial of the deceased amounting to sixteen dollars. There was a verdict °in this case for fifty dollars and forty cents, and this judgment was affirmed by this court. It was then clearly the duty of the telegraph company, having accepted the message for delivery, to use every reasonable means at its command to make delivery.
It is not a question here of liability that would have resulted, had the company refused to accept the message for transmission; but it is a case here where the com*423pany, having accepted the message for transmission and having been paid the fee therefor, as to whether it could refuse and neglect to send the message,'by refusing to use a public ■ agency engaged in, and charged with the duty of, transmitting all messages tendered, and escape liability for such failure. Clearly it could not.. It was in duty bound, on finding its own office disconnected at McAdams, to ténder the message to the Postal Telegraph Company, or some other agency which could'deliver the message to McAdams. It affirmatively appears that the Postal Telegraph Company had an office at Nashville, Tenn., and also one at Kosciusko, Miss., and if this message had been tendered to that company at either place it would have been transmitted and delivered promptly.
But little was said in the former opinion upon the question of actual damages, but the opinion does hold that actual damages are recoverable: . Not only did the plaintiff have the right to the custody of the body, to provide for its burial, and to select a place therefor, but the sendee was inconvenienced in making efforts to raise the necessary money to procure the shipment of the body 'from Nashville to her; all of which are items of compensatory damage. In the case of Cumberland Telephone & Telegraph Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 Am. St. Rep. 702, this court held that inconvenience was an element of compensatory damages, and upheld a verdict for one hundred and fifty dollars based upon the .inconvenience of being without a phone, which the telephone company wrongfully refused to install. On page 260 of the Mississippi report of this case (42 So. 350, 119 Am. St. Rep. 702) the court, speaking through Justice Maxes, said:
“The jury in this case allowed the sum of one hundred and fifty dollars, and we cannot say that their judgment was wrong in this matter. The law of damages, and what is proper to be allowed, must largely depend upon the nature of the suit in which damage *424is sought to be recovered. It was impossible for Hobart to itemize each separate item of damage occasioned him by the removal of bis telephone. The difficulty in doing this is manifest to every one. The telephone has come to be a necessity. It is the thing which completes the use of a home. It is resorted to daily, and hourly, to such an extent as to be regarded as indispensable; yet, when it comes to taking pencil and paper and calculating day by day what pecuniary value it possesses, it is almost impossible. The inconvenience, the annoyance, and the trouble of being without one is a damage which no one can accurately estimate. It is such inconvenience and annoyance as is only to be fully appreciated when one is deprived of its use; its loss is a great and distinct damage, yet such damage as is not susceptible of exact measurement. When the telephone company undertook to cut out the residence telephone because of the nonpayment of rent, Hobart was in default, and it had the right to do it. When appellant declined to reinstate it after having been offered the rental of the telephone in the dwelling house, it was its duty to reinstate it, and, not having done so, it should compensate Hobart for his pecuniary loss, and such inconvenience and annoyance in being wrongfully deprived of its use, as the jury thought proper under the fact. ’ ’
In the case of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L. R. A. 682, this court held that compensatory damages are not necessarily limited to actual money losses; that for an unlawful incarceration of plaintiff by defendant in an insane asylum compensation -may be had, not only for money expended in procuring the release, but for the consequent humiliation, shame, disgrace, and injury to reputation. Compensation for these, not being punitive damages, may be recovered after the death of the defendant from his personal representative. In discussing this ease Justice Woods, speaking for the court, said:
*425“Surely these injuries were real ones, and compensation for these would have been an award for actual damages. Compensatory and actual damages are one, and compensation for wrongs done to one’s character is, in no sense, punitory. We cannot consent that actual damages, in this case, must be confined to the few dollars and cents shown to have been expended by plaintiff to secure her release from the asylum, and that no compensatory damages were award-able for-shame and anguish and hurt to character.”
This court is fully committed to the doctrine that damages for mental anguish, alone, will not be awarded where there is mere negligence, but to warrant damages for mental anguish the negligence must be willful or wanton, or must be such a disregard of the plaintiff’s rights as to amount to wantonness. The instruction, as pointed out in the main opinion on this suggestion, was erroneous, under the decisions of this court, in allowing compensatory damages for mental anguish for simple negligence. However, compensatory damages can, and should, be allowed for the wrongful withholding of the body, resulting from the neglect to send this telegram, and for the consequent inconvenience and trouble resulting from such neglect, even if this negligence is simple negligence, and not gross negligence. In the case of Steinberger v. Western Union Telegraph Co., 97 Miss. 260, 52 So. 691, this court held that the failure to transmit a message, where the failure was unexplained, amounted to gross negligence, and authorized the recovery of punitory damages. In that case no effort to explain was made at all, while in this ease the party whose duty it was to see to the routing of the telegram was not produced and did not testify in exoneration of the company. It does not seem to me that, where the company has the witness by whom it could explain its default, it can escape being charged with gross negligence by the producing of somebody who had no duty in routing the telegram. It was certainly the business of *426some officer of the telegraph company to know to what points it had offices and at what points it had connections; and from the testimony in this record the person who is charged with that duty and that knowledge was not produced at all.
While at common law in ancient times the dead body was not regarded as property, and while the rights and dispositions of such bodies was intrusted to the ecclesiastical courts, this rule has never prevailed in its full extent in America, and modern authorities have abandoned that doctrine,- and 'practically all of the authorities agree that, where a dead body is injured or mutilated, the next of kin, having the right to such body for disposition and burial, may recover damages. Some place the right to recover upon one principle, and some upon another; but all recognize the rights of the next of kin, and award compensation for any invasion or injury of such rights. In the case of Louisville & Nashville R. R. Co. v. Wilson, 123 Ga. 62, 51 S. E. 24, 3 Ann. Cas. 128, 2 Am. Ruling Cases, 1164, Judge Lumpkin, speaking for the Georgia court in discussing the rights in reference to dead bodies and for injuries thereto, uses the following language:
“ Death' is unique. It is unlike aught else in its certainty and its incidents. A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed and thought and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law — that rule of action which touches all human things — must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all the rules regarding corn, lumber, and pig iron. And yet the body must be buried or disposed of. If buried, it must be carried to the place of burial. And the law, in its all-sufficiency, must furnish *427some rule, by legislative enactment, or analogy, or based on some sound legal principle, by which, to determine, between the living, questions of the disposition of the dead and rights surrounding their bodies. In doing this, the courts will not close their eyes to the customs and necessities of civilization in dealing with the dead, and those sentiments connected with decently disposing of the remains of the departed which furnish one ground of difference between men and brutes.”
In this case the court held the railroad company liable for its negligence in holding and dealing with the dead body and injury to the coffin and burial materials. The learning on the subject of dead bodies is extensive and is well collected in 2 Am. Ruling Cases Annotated, and notes appending to such cases in this series, and especially the case note beginning at page 1141, annotating the case of Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. St. Rep. 795. It is inconceivable to my mind that a right so valued and so sacred to all human beings cannot be regarded as the subject of compensatory damages. In all the ages known to present history the burial of the dead has been held a valuable and sacred privilege. Defending the resting places of the dead has inspired countless armies to valor, has nerved and strengthened the courage of the hero, and has been the theme of the orator and poet.
‘ ‘ Then out spake brave Horatius,
The captain of the gate:
‘To. every man upon this earth Death cometh soon or late;
And how can man die better
Than facing fearful odds
For the ashes of his fathers
And the temples of his gods V ”
In the war songs of every nation we find reference to the resting place and ashes of their dead. What is the value to a parent of a dead body of the son? What *428man or woman baying a son/ receiving a message similar to the one in this ease, would not count out the last coin in their possession to have the body brought home for the final honors and ministrations to the dead? Ask the fathers and mothers in this land, who have sons in the trench-scarred hills of Prance fighting for the cause of liberty, what they would give, in case their son should he killed, to have his body returned home, to be placed with the family dead, rather than to lie in forgotten graves by some inland river on a foreign soil, “under the sod and dew, awaiting judgment day,” where they could not have the privilege and consolation of visiting the graves and doing the customary honors and reverences to the dead. Surely this is one of the rights that people have that is valuable and worthy of the protection of the courts and of the law. But if we even disregard all sentiment and affection and human attributes that dusted around the right to bury the dead -and be with the dead bodies, and if we descend to the lowest depths of damnable dollarism and place only the value the dead body would bring if offered for sale, we find in modern times that the body is valuable and will even bring money when offered to medical colleges and other scientific institutions to be offered upon the altar of science. There is no standpoint from which we can regard the subject, but which there are rights and value, and it is impossible for me to believe, in this enlightened age, that, where a person is deprived of the custody of the dead, there can be no compensation for the neglect, even though it be simple neglect, of a person or corporation whose wrongful acts result in depriving the next of kin of their sacred rights.