
    JAY WOODS v. WESTERN UNION TELEGRAPH COMPANY.
    (Filed 20 May, 1908.)
    1. Telegraph — Negligence—Messages, Delay in Delivery of — Prima Facie Case — Burden of Proof.
    When the failure of a telegraph company to deliver a message is shown, a prima facie ease of liability is made out, and the burden of proof is upon the company to show facts excusing its failure.
    2. Same — Duty of Company — Evidence—Nonsuit.
    Upon plaintiff’s evidence, tending to show that a telegram was addressed to No. 3S D. Street, where it could not have been delivered, and when the addressee lived in the rear of No. 83 D. Street, where delivery could have been made, and defendant introduced no evidence, it was error in the trial Judge to sustain a motion as of nonsuit upon the evidence, as it then was encumbent upon the defendant to show such reasonable inquiry and the exercise of that degree of care required of it under the circumstances to excuse the failure to deliver.
    3. Telegraph — Negligence—Message—Wrong Address — Delivery-Reasonable Efforts — Evidence—Idem Sonans.
    When a telegram was addressed to the wrong street number, where it could not have been delivered, it was encumbent upon the defendant to use such reasonable efforts to deliver it as required when no number is given; and the city directory containing the name of addressee, of Jay Wood for Jay Woods, with his correct address, it is sufficient evidence of negligence for the jury to consider.
    
      4. Same — “Service” Message — “Better Address.”
    When the addressee of a message cannot, after due search, be found at the terminal point, a failure of the telegraph company to wire the sending office for a better address is some evidence of its negligence.
    5. Telegraph — Death Message — Defense—Seeing the Body.
    It is not sufficient to bar a recovery for actual damages for failure of a telegraph company to deliver a message-announcing a death that the party for whose benefit it was sent saw the body before burial.
    6. Telegraph — Common-law Duty — Statutes of Another State — Evidence — Judicial Notice.
    An action against a telegraph company for. mental anguish caused by its failure in its duty to deliver a telegram is founded on the common law, and does not require the aid of a contract to support it. Hence, as there is a presumption that, prima facie, the common law applicable to such cases is in force in other States, it is encumbent upon the party relying upon a statutory different rule of law applicable in another State.to prove it, for the court will not take judicial notice thereof.
    7. Telegraph — Death Message, Delay in Delivery of — Decomposition — Measure of Damages.
    In an action upon a message announcing a death, when the complaining party arrived in time to see the'body, damages will not be awarded for injury to feelings caused by seeing the corpse in an advanced stage of decomposition as a natural consequence of a breach of duty by the telegraph company in not delivering the message more promptly.
    Clabk, C. J., concurring arguendo.
    
    ActioN tried before Guión, J\, and a jury, at September Term, 1907, of BuNcombe.
    This action was brought to recover damages for negligently failing to deliver a telegram. Grant Woods died in Knoxville, Tenn., 14‘October, 1905, and immediately after bis death his widow, Leona Woods, delivered to the defendant for transmission over its wires to the plaintiff, the brother of the deceased, who resided at Asheville, N. 0., the following message:
    
      “Jay Woods, “KNOXville, TeNN., Oet. 14, 1905.
    
      No. 38 Depot Street,
    
    
      Asheville, N. G.
    
    “Come at once. Grant Woods is dead. If not, let know.
    “LeoNA Woods.”
    Tbe plaintiff testified in his own behalf as follows: “My name is Jay Woods. I live in Asheville and own my own home, in the rear of No. 83 Depot Street, where I have lived for about ten years. I am a porter, in the employ of the Southern Railway Company, and on the 14th day of October, 1905, and before and after that time, was running on a passenger train between Asheville, N. C., and Columbia, S. 0. My run brought me into Asheville between 1 and 2 o’clock on one day and took me out about 4 o’clock on the following day. I was in Asheville on Saturday, the day the telegram was received at the Asheville office, and until about 4 o’clock on the following day, when I went out on my run. Monday, ón my way back to Asheville, I learned at Spartanburg, about 11 A. M., that my brother, Grant Woods, was dead, and that his body had passed through Asheville that morning and would be buried at Cleveland, N. C., that day. My brother lived at Knoxville and was engaged in railroading. Our mother’s home is near Cleveland, and Grant’s body was taken there from Knoxville for burial. My train was late that day, Monday, getting into Asheville so late that, as we came into the yard, No. 12, the train for Cleveland, was pulling out. The next train for Cleveland was Tuesday morning, about J o’clock. I took this train. On arriving at Asheville Monday afternoon, and finding I could not go to Cleveland until next morning, I wired my mother’s home, asking that they hold the body until I arrived. I reached home some time after noon Tuesday, and walked to my mother’s home, about five miles in the country, arriving about 4 o’clock. Grant’s funeral was held about an hour after my arrival, and I was present at bis funeral. -When I reached borne tbe condition of Grant’s body was such that I could hardly tell who be was. If the telegram bad been delivered to me Saturday night, when it was received at the Asheville office, I could and would have caught the train for Knoxville, due to leave that night about 1:10 A. M. and to arrive at Knoxville ab.out daylight Sunday morning. If I had missed this train there were two trains on the following day — one about 1 A. M. and one about 2 :30 P. M. — from Asheville for Knoxville. My house is about 15 or 100 feet in the rear of Depot Street. There was one house between nay house and Depot Street. There was no house fronting on Depot Street numbered 83, and a person walking along the street could not have seen such a number. I did not live at 38 Depot Street, and a message addressed to that number and delivered there would not have reached me, as there was a white family living there.”
    Will Robertson, witness for the plaintiff, testified that on 15 October, 1905, he resided in the rear of No. 85 Depot Street, and that the above message was delivered to him on Sunday, about 6 o’clock P. M., and by him turned over to Jay Woods’ wife later in the evening.
    The plaintiff also offered in evidence the then current city directory of Asheville. It was admitted that this was the city directory, but defendant did not admit that it was correct. The directory showed the name of Jay Wood, porter, and that he lived in the rear of house No. 83 Depot Street.
    At the close of plaintiff’s evidence the court, on motion of defendant’s counsel, ordered a nonsuit, under the provisions of the statute. Plaintiff excepted and appealed.
    
      Frank Garber and II. 0. Ghedesier for plaintiff.
    
      Merrick & Barnard for defendant.
   Walker, J.

The case should have been submitted to the jury, and the court erred in deciding as matter of law that there was no evidence of actionable negligence. The defendant introduced no evidence, and it therefore does not' appear that it made any effort, not even the slightest, to deliver the message, ‘notwithstanding the mistake in the street address. This Court, in Hendricks v. Telegraph Co., 126 N. C., 304, held it as well settled by the authorities that when a telegraph company receives a message for delivery to the addressee and fails to deliver it, it becomes prima facie liable, and the burden rests upon it of proving such facts as will excuse its failure. That case followed the principle as stated in Sherrill v. Telegraph Co., 116 N. C., 655, and it has been since approved in numerous cases. Laudie v. Telegraph Co., 126 N. C., 431; Rosser v. Telegraph Co., 130 N. C., 251, and Cogdell v. Telegraph Co., 135 N. C., 431, where the cases upon this question are collected. The Court said, in Rosser v. Telegraph Co., supra, that “All the facts relating to the transmission of the message were within the possession of the defendant, and it did not choose to disclose them to the court and jury. From the very nature of telegraphy, neither the sender nor sendee could personally know what became of the message or why it was not received at its destination, or, if received, why not delivered.”

In Hinson v. Telegraph Co., 132 N. C., 460, the message was addressed to M. L. Hinson, in care of the Olympia Mills, Columbia, S. C., without giving any street number or address. The messenger was informed that Hinson was not at the mills. The agent of the mills refused to receive it for him, and this Court said that the case stood as if the message had not been sent in care of the mills, and with no better information of the whereabouts of Hinson than if it had simply been addressed to him at the city of Columbia, S. 0. It was nevertheless held to be the duty of the defendant to make every reasonable effort and to exercise due diligence to find the sendee and to deliver the message, and this is 'the doctrine as stated in all the decisions of this Court where such a point has been presented. Cogdell v. Telegraph Co., supra; Hendricks v. Telegraph Co., supra. In Hinson's case the defendant, as it appeared, bad used due diligence to find tbe addressee. But tbe case of Lyne v. Telegraph Co., 123 N. C., 129, would seem to be directly in |ooint and to charge tbe defendant with negligence, at least prima facie, as tbe facts now appear in this case. It was there held to be tbe duty of tbe defendant to inquire at tbe post-office for tbe residence of tbe sendee, no street address having been given. Tbe rule is that tbe defendant must make reasonable inquiry and exercise that degree of care which a prudent person would use under tbe circumstances in tbe effort to deliver tbe message. In this case it seems that tbe defendant made no attempt to deliver tbe message. Tbe misdirection did not excuse this omission on its part. If tbe messenger boy bad inquired at No. 38 Depot Street be would have been told, it is true, that Jay Woods did not live there, but be might have acquired information which would have led to tbe discovery of bis residence, as be lived close by. Tbe entry in tbe city directory was also some evidence to be submitted to tbe jury upon the issue of negligence. Tbe slight variation from tbe true name — that is, Jay Wood for Jay Woods — was not sufficient to deprive it of its character as evidence, and was hardly sufficient to mislead a person of ordinary prudence. Cogdell v. Telegraph Co., supra. No inquiry was made at tbe post-office. Lyne v. Telegraph Co., supra. Indeed, tbe defendant, so far as tbe case shows, did not even send out a messenger boy with tbe telegram for tbe purpose of finding tbe sendee. If due search bad been made for him and be could not be found, it was still required to wire back for a better address, which it did not do, and this was evidence of negligence. Hendricks v. Telegraph Co., 126 N. C., 304; Cogdell v. Telegraph Co., 135 N. C., 431. In any view of tbe case there was evidence of negligence proper to be considered and passed upon by tbe jury, and tbe judgment of nonsuit was therefore erroneous.

Tbe fact that tbe plaintiff did see bis brother’s body before tbe burial is no defense to tbis action. Tbe defendant bas failed to perform a plain duty wbicb it owed to bim, and tbis shows actionable negligence. Hendricks v. Telegraph Co., supra; Cogdell v. Telegraph Co., supra; Hocutt v. Telegraph Co., 147 N. C., 186. Nor will tbe objection bold that tbe message w7as sent from Knoxville, Tenn. There is no proof of tbe law of that State in respect to tbe recovery of damages for mental anguish in a case like tbis one. We have held that tbe breach of tbe duty of tbe defendant in delivering a message is a “breach of tbe law, and for this breach an action lies, founded on tbe common law, wbicb action wants not tbe aid of a contract to support it. Green v. Telegraph Co., 136 N. C., at p. 492; Cashion v. Telegraph Co., 124 N. C., 459; Cogdell v. Telegraph Co., 135 N. C., 431. “In tbe absence of proof to tbe contrary, tbe courts of our State will presume tbe common law to prevail in a sister State.” 6 Am. and Eng. Enc. of Law (2d Ed.), 282; Griffin v. Carter, 40 N. C., 413; Brown v. Pratt, 56 N. C., 202; Gooch v. Faucett, 122 N. C., 270; Terry v. Robbins, 128 N. C., 140; Bank v. Carr, 130 N. C., 479. “Tbe statute and common law of our sister States are facts to be proven, as any other facts in a cause, by the party who seeks to take advantage of any difference that may exist between such laws and our own.” Bremhill v. Van Campen, 8 Minn., 13; Peterson v. Bank, 32 N. Y., 21. Tbe rule upon tbis subject is well expressed in Carpenter v. Railway, 72 Me., 388: “Tbis brings us to tbe inquiry whether tbe ruling at tbe trial can be sustained upon tbe ground that there was n<? evidence of what tbe law of Ganada was. We think not. Undoubtedly tbe case was to be tried in accordance with the law of tbis State, in tbe absence of proof of any other law. Tt is a well-settled rule,’ says tbe Court of Appeals of New York, 'founded on reason and authority, that tbe lex fori, or, in other words, tbe laws of tbe country to whose courts a party appeals for redress, furnishes in all cases prima facie tbe rule of decision.; and if either party wants tbe benefit of a different rule or law (as, for instance, tbe lex domicilii, lex loci conlraclus, or lex loci rei sites), be must aver and prove it.r Tbe courts of a country are presumed to be acquainted witb tbeir own laws, but those of other countries are to be averred and proven, like other facts of which courts do not take judicial notice.’ ” Monroe v. Douglas, 5 N. Y., 447. Wigmore, in his work on Evidence, par. 2536, says that in reality there is no presumption of what the law is in another State, but' the true process is merely that of refusing to recognize a presumption that a foreign State has a law different from that of the lex fori.

The jDlaintiff cannot recover any damages because he saw his brother’s body after decomposition had advanced so far that his features could “hardly” be recognized. We have held at this term that this is not a proper element of damages. Kyles v. Railway, 147 N. C., 394.

New Trial.

Clark, O. J.,

concurs in the opinion of the Court on the additional ground thus stated in the two latest works on the subject:

Jones Telegraph, sec. 598, says: “Under the rulings of the courts in those States which permit a recovery of damages for mental anguish or suffering, such damages may be recovered for the negligent transmission or delivery of a message sent into these States from those which refuse to allow such damages. Gray v. Telegraph Co., 108 Tenn., 39; 56 L. R. A., 301n; 91 Am. St., 706; Telegraph Co. v. Blake, 29 Tex. Civ. App., 224. The same rule applies where the messages are sent from the States which permit to those which do not permit such recovery, when the action is brought in the former States. So, also, damages may be recovered in the State where the message is sent, although it is to be delivered in a State which does not allow a recovery of such damages. Bryan v. Telegraph Co., 133 N. C., 603; Telegraph Co. v. Waller, 96 Tex., 589; Telegraph Co. v. Cooper, 29 Tex. Civ. Appeals, 591. But if botb tbe States from and to which the message is sent refuse to allow damages for mental suffering, such damages cannot be recovered, although the suit is brought in a State which does allow such damages, and is one through which the company has a line. Thomas v. Telegraph Co., 25 Tex. Civ. Appeals, 398. It seems that the statutes in those States (and, we may add, decisions) permitting a recovery of such damages raise the duty of these companies above that assiuned in'the contract of sending, and base their reasons upon the fact that a public duty has been violated, for which damages may be recovered, either at the place of sending or receiving,” citing to sustain the view that this is a breach of public duty Thomp. Elec., sec. 427. This ground of recovery has always been recognized in this State.

In 2 Joyce Telegraph, sec. 812c, it is said: “Under a South Carolina case, if a mistake occurs at the office in a State from which the telegram is sent, recovery may be had therein by the addressee for mental anguish, where it is a ground for recovery in such State, and it need not be shown that there has been a change in the common law of the State to which the message is sent. Walker v. Telegraph Co., 75 S. C., 512. It is also determined in that State that, although the telegram was received for transmission in another State, yet, if there was a failure to deliver in South Carolina, an action was maintainable there for the resulting mental suffering.”

If there is breach of a public duty, and damages for mental anguish are recoverable therefor, it logically follows that when the action is brought in this State such damages are recoverable, whether the message originated or was received here. And, for the very reason that permits either the sender, sendee or beneficiary of a message to recover upon showing injury to himself from a breach of such duty, this State has allowed damages for mental suffering, irrespective of whether the message originated bere or was received bere. In Thompson v. Telegraph Co., 107 N. C., 449, sucb damages were allowed where tbe message was sent from Danville, Va., to Milton, N. C. In Young v. Telegraph Co., 107 N. C., 370, tbe message was sent from Greenville, S. C., to New Bern, N. C. These were our two earliest cases allowing damages for mental anguish. And sucb damages have been frequently allowed 'since in regard to telegrams originating elsewhere. Tbe sole case to tbe contrary is Johnson v. Telegraph Co., 144 N. C., 410, in which the first paragraph in tbe headnotes requires us to overrule tbe second headnote.  