
    Mrs. R. M. THOMASON v. HACKNEY & MOALE COMPANY.
    (Filed 28 May, 1912.)
    1. Mental Anguish — Photographer — Lost Films — Contracts—Party in Interest — Notice.
    A photographer lost certain films taken with a kodak oí a deceased child shortly before and after her death, which he had received from the aunt of the child, its mother’s sister, for development, who informed the agent “to be careful of them, as they were the only films of the little dead girl.” There was no suggestion or notice to the photographer that the one delivering the films was acting for her sister, the mother of the child. In an action to recover damages for mental anguish, brought by the mother against the photographer for the negligent loss of the films: Held, compensatory damages were not recoverable, as the interest of the plaintiff in the transaction was not disclosed at the time.
    2. Same — Measure of Damages — Sentimental Values.
    In an action to recover damages of a photographer for the negligent loss of the only films taken of a child just before and after its death from which a likeness of the child could be had and of which the defendant was notified at the time he received them for development, nominal damages and the value of the films are at most recoverable. Whether the jury may, in such instances, consider the “pretium affectionis,” or the sentimental value of the films, discussed by Walker, J.
    Clark, C. J., dissenting.
    Appeal by defendant from Long, J., at January Term, 1912, of BuNCOMBE.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walher.
    
    
      U. 0. Chedester for plaintiff.
    
    
      Merrick & Barnard for defendant.
    
   Walker, J.

This is an action upon contract. The plaintiff alleges that, baying been advised that ber infant child was about to die, sbe caused a number of pbotograpbic negatives to be made by a friend witb ber kodak, and tbat said negatives or films were taken to defendant to be developed and finished, and tbe "films returned and tbe photographs delivered to tbe plaintiff, tbe defendant at the time being engaged in the business of developing such negatives and making photographs from them. The defendant received the films and undertook to develop and finish the same, for a price to be paid by the plaintiff, but having lost them, he failed to return them with the photographs, according to the contract. The plaintiff further alleges that these negatives were the only ones she had of the deceased child, and she had no other pictures or likenesses of her, and defendant received and aeceptéd the films or negatives with full knowledge of the facts. He knew the child was dead and that if the films were lost and the photographs not delivered, the plaintiff would not be able to have a likeness of her child 1aken. The evidence shows that the films were taken to the defendant on 10 July, 1906, by Mrs. Dora Phillips, a sister of the plaintiff, who delivered them to a clerk of the defendant at its place of business, and he promised to develop them and make photographs from them. The plaintiff, it seems, from her complaint, seeks to recover damages for mental anguish suffered by her, resulting from the loss of the films and photographs from them of her child who died. It may be that, by a very liberal construction of the complaint, we may gather that the plaintiff has alleged that she suffered other damage by the breach of the contract; but this, perhaps, is immaterial, as the recovery was confined by the judge’s charge to damages for the mental anguish which she suffered. The jury rendered a verdict for the plaintiff, upon which judgment was rendered, and the defendant appealed.

In order to determine whether there was error in allowing the recovery of damages for mental anguish, it will be necessary to set out particularly what was said by Mrs. Dora Phillips when she delivered the films to the clerk of the defendant. She testified as follows:

“When I went in, he said, ‘Lady, can I wait on you?’ and I answered, ‘Yes; I have some films to be developed of my sister’s little girl.’ He was behind the counter and had waited on me before, when I bought some books from him. I left the films with him, and told him that I wanted them developed; that they were .pictures of my sister’s little girl, and that she was dead. I told him there were several of them and I hoped some would be good, and he replied, ‘You can get them Monday/ and I said that it was the last we had of them, and if any were good, to finish a dozen and put them on the cards they had, and that I would want more if they were good. He laid the films on the counter and I said, ‘Be careful of them, as they are the only films we have of the little dead girl.’ The films or pictures were taken with a kodak on 3 July, and the child died the next day.”

As the films were delivered to the defendant by Mrs. Dora Phillips and the contract was to develop them and make photographs from them for her, without any suggestion or notice to the defendant that she was acting for her sister, Mrs. Thoma-son, who is the plaintiff, we do not think that, under the cases recently decided by this Court, the latter can recover damages solely for mental anguish.

We held in Helms v. Telegraph Co., 143 N. C., 386, that a party who is not mentioned in a telegraphic message, or whose interest therein is not otherwise disclosed to the company, cannot recover substantial damages for mental anguish alleged to have been sustained by reason of the Nondelivery of the message, and it was said by Justice Brown, who spoke for the Court in that case, that the principle thus .announced is supported by the “overwhelming weight of authority.” The evidence in that case, of the company’s knowledge as to who was the principal, or, in other words, as to the identity of the person in whose behalf the message was sent, was quite as strong as, if not stronger than, the evidence in this case, to fix the defendant with notice of the fact that Mrs. Phillips was acting in behalf of her sister, the plaintiff. In the course of the opinion in the Helms case, Justice Brown says: “The same principle applies where the message is sent for the benefit and at the instance of any one whose name does not appear on its face. The well-known rule laid down in Hadley v. Baxendale, 9 Exch., 345, decided in 1854, has been applied by the Supreme Court of the.United States to telegraph cases, arid it is held that where the telegraph company is not informed of the nature of the transaction to which the message relates, or of the position which the plaintiff in the action would probably occupy, the measure of damages for negligence is the sum paid for sending. Primrose v. Telegraph Co., 154 U. S., 29; Hall v. Telegraph Co., 124 U. S., 444. Our own Court has adopted the same principle of law as applicable to this class of eases. In Williams v. Telegraph Co., 136 N. C., 82, it is said: 'The principle uniformly sustained by the cases upon the subject, some of which we have cited, is that, unless the meaning or import of a message is either shown by its own terms or is made known ■by information given to the agent receiving it in behalf of the company for transmission, no damages can be recovered for failure to correctly transmit and deliver it, beyond the price ' paid for the service.' In Cranford v. Telegraph Co., 138 N. C., 162, the plaintiff was not permitted to recover because her interest in the telegram was not shown upon the face of it, and was not brought to the attention of the company, and it is specifically held that 'there can be no recovery of damages for delay in the transmission and delivery of a telegram when it does not appear in any way that the plaintiff was the intended beneficiary of the message.' See, also, Kennon v. Telegraph Co., 126 N. C., 232.”

We have more recently affirmed the same doctrine in Holler v. Telegraph Co., 149 N. C., 336, and in so far as it is applicable to telegraphic messages, the rule is settled by that case, which cites and reviews all prior cases in this Court upon the subject. A careful reading of that ease will show that it was not intended to decide that the beneficial interest of a third party or party not named in the message should be ascertained, and appear by answer to a distinct issue containing an inquiry as to the fact. We-were there dealing with issues inadequate to support the judgment. It would clearly be sufficient if it appeared from the evidence, the charge of the court, and the verdict upon the issues, when considered and construed together, that the defendant had notice of such beneficial interest at the time of making the contract, or, as held in Peanut Co. v. R. R., 155 N. C., 148, at some intermediate time, under certain circumstances and restrictions therein indicated. 'The last cited case sustains the proposition hereinbefore stated. Referring to tbe matter, Justice Hoke, says, in substance, tbat in tbe Helms case, swpra, tbe contract bad been finally broken and was not in tbe course of performance, and tbe sole question at issue being tbe amount of damages for mental anguish suffered, and due to tbe defendant’s negligent act or breach of tbe contract, “tbe personality of tbe party and bis relationship to tbe subject of tbe message” was material and should have appeared.

Applying tbe principle thus established to this case, there was nothing said by Mrs. Phillips to defendant’s clerk which would lead him to suppose tbat she was acting for her sister and not solely for herself. There was nothing unusual in having the films developed and tbe photographs made for herself. Tbe child was her niece and it was perfectly natural tbat she should place a special and peculiar value upon tbe films, and desire to preserve a photograph of her. -The jury might have guessed or conjectured tbat she was acting for her sister, but this will not do. Byrd v. Express Co., 139 N. C., 273.

Tbe plaintiff, if she establishes her cause of action, will be entitled, at least, to nominal damages, and she may recover tbe value of tbe films if she can prove tbe same. "Whether, in ascertaining this value, tbe jury may consider tbe "pretium affectionis” — that is, an imaginary value placed upon a thing by tbe fancy of its owner, growing out of bis or her attachment for tbe specific article, its associations and so forth, which, perhaps, may not inaptly be called its sentimental value —we need not say, as there was no recovery for the value of tbe films; but it may not be irrelevant to refer to tbe question, and this being so, we cannot do better than to quote what is said in Hale on Damages at p. 184: “In most cases tbe market value of tbe property is tbe best criterion of its value to tbe owner, but in some its value to tbe owner may greatly exceed the sum tbat any purchaser would be willing to pay. Tbe value to tbe owner may be enhanced by personal or family considerations, as in the case of family pictures, plate, etc., and we do not doubt tbat tbe 'pretium affectionis ’ instead of tbe market price, ought then to be considered by tbe jury or court in estimating tbe value. "When analyzed, tbe damage caused by tbe loss or destruction of property of this nature consists of two elements: First, tbe loss of tbe real property value; second, tbe grief or mental suffering at tbe loss of tbe cberisbed article. From tbis we gather wbat we apprehend to be tbe true rule, which is that, where property is of such a nature that its loss or destruction, under .the circumstances, naturally and proximately causes mental suffering, compensation for such mental suffering may be recovered, in a proper action, in addition to tbe actual value of tbe property.” Suydam v. Jenkins, 3 Sandf., 621. There is some conflict in tbe authorities relating to this matter, and we will not now attempt to reconcile them or decide wbat is tbe correct principle. It has been held that tbe sentimental value of property, tbe “pretium ajfectionis” as it is called, cannot be recovered as compensation for tbe destruction or conversion of such property. Moseley v. Anderson, 40 Miss., 49. It has been said that tbe satisfaction and pleasure which tbe possession of an article gives, like tbe satisfaction which comes from having a contract respected and performed, is of a nature that tbe law does not recognize as a subject for compensation. Sedgwick on Damages, sec. 251. We find'it stated in Parsons on Contracts (3 Ed.), 209, that tbis pretium ajfectionis cannot be recovered, unless in eases where tbe conversion or appropriation of the property by tbe defendant was actually tortious. Hale on Damages, supra.

We barely allude to the subject in Lumber Co. v. Cedar Co., 142 N. C., at pp. 416 and 417, when discussing tbe jurisdiction of courts of equity in cases of injunctions, as follows: “Tbe courts of equity finally assumed jurisdiction for tbe prevention of torts or injuries to property by means of an injunction, under certain safeguards and restrictions, and two conditions were required to concur before it would thus interfere in those cases, namely, the plaintiff’s title must have been admitted or manifestly appear to be good, or it must have been established by a legal adjudication, unless tbe complainant was attempting to establish it by an action at law and needed protection during its pendency, and, secondly, tbe threatened injury must have been of such a peculiar nature as to cause irreparable damage, as, for instance, in tbe case of tbe destruction of shade trees or of any wrongful invasion of property which, by reason of tbe character of the property or the form of the injury, rendered the wrong incapable of being atoned for, by compensation in money, such as torts committed on property and things having a value distinct from their intrinsic worth; for instance, a pretium cujfectionis, though not a merely imaginary value.”

Of course, damages which are merely imaginary or have no real or substantial existence, should not be allowed. In this case the question is purely academic, as it is not presented by any exception, but we considered it proper that we should make some reference to it, as it is contended that the films had a value peculiar to plaintiff, apart from their intrinsic value.

There was error in the charge under which damages for mental anguish were awarded.

New trial.

Clark, C. J.,

dissenting: Upon this evidence, the reasonable inference was that the plaintiff in desiring to get the film of the “little dead girl” developed was acting as agent of her sister, the mother of the little girl, and that the defendant’s agents must have understood as much. The court left that issue of fact to the jury and they found that such was the ease. Indeed, this is the only natural inference to be drawn from the evidence.

The defendant’s agent was told that the little girl was dead and that these films had been taken, some just before and some just after her death, and that they were the only films there were of the child. The defendant’s agent must have known that there would be mental anguish if these films were negligently destroyed. Any knowledge of a mother’s heart would have told him that.

In Young v. Telegraph Co., 107 N. C., 370, this Court said: “Damages for injury to feelings, such as mental anguish, are given, though there may be no physical injury, in many eases. They are allowed where a party is wrongfully put off a train; in action for breach of promise of marriage; for slander; for libel; for criminal conversation; for seduction; for malicious prosecution; for false arrest, and for wrongfully suing out an attachment.” Such damages have been allowed in many other cases where the natural result of the breach of contract, or a tort, was the infliction of mental anguish. The verdict and judgment of $400 should be sustained.  