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THE GREEN BAG

MENTAL ANGUISH. (RECOVERY THOUGH NO PERSONAL INJURY RESULTS FROM NEGLI GENCE.) NORTH CAROLINA SUPREME COURT. The rule commonly known as the Texas doc trine, owing to its early support by the courts of that state, to the effect that recovery may be had for mental anguish, although no physical injuries result, has recently been extended to North Caro lina by the decision of the Supreme Court of that state in the case of Green v. Western Union Tel. Co., 49 Southeastern Reporter, 165, to cases which did not involve sickness or death. In this case a telegram announcing the arrival of a sixteen year old girl, alone on.a midnight train, in a town where she was a stranger, was sent to a friend in that town, with the request that she meet the young woman upon her arrival at the station. A mis take was made by the telegraph company in the name of the sendee, owing to the similarity of sound on the telegraph keys between one of the letters of the sendee's name and one of the letters in the name as incorrectly taken, although the address was correctly received. As the name could not be identified, no effort was made to de liver the message, and the young woman, upon her arrival, found no one to meet her. The con ductor of the train put her in charge of the colored matron at the station, who later secured a hack, and after some delay she was driven to the house of her friend. While no physical injury resulted, the mental suffering of the plaintiff is made the ground of the action for damages. The court in considering the question calls attention to the fact that the telegraph company is a quasi public corporation, and possesses extraordinary privi leges which, under the North Carolina constitu tion, can be exercised only by such corporations as are organized for a public purpose. The duties of the telegraph company are essentially public, it being in fact the complement of the postal ser vice, and is one of those great pxtblic agencies so important in its nature and far-reaching in its application that some statesmen have deemed its continued ownership in private hands a menace to public interests. Hence it follows, both upon reason and authority, that the failure of the tele graph company to promptly and correctly trans mit and deliver a message received by it is a breach of a public duty imposed by operation of law. As was said in an English case, a breach of this duty is a breach of the law, and for this breach an action lies, founded upon the common law, which action wants not the aid of the contract to support it. The cases of Cashion v. Tel. Co., 124 N. C. 439, 32 S. E. 746, 45 L. R. A. 160, Landie v. Tel. Co., 124 N. C. 528, 32 S. E. 886, and Cog-

dell v. Tel. Co., 135 N. C. 431, 47 S. E. 490, are also cited to this point. All the facts in the case are admitted, and it only remains, says the court, to consider whether the plaintiff is entitled to recover for the mental anguish she may have suffered as the direct result of defendant's negli gence. Replying to the allegation that it does not require to be pointed out that if the barriers are once thrown down and any disappointment, annoyance, or unnecessary alarm occasioned by a delayed telegram shall be allowed to be the subject of damages, every barrier which the law has erected in the limitation of actions for damages will be thrown down, the court says: "We do not think that any such result will follow our decision in this case, but such a possibility should not deter us from giving to the plaintiff the full meas ure of justice to which she is entitled. . . . We feel compelled to carry out a principle only to its necessary logical results, and not to its further theoretical limit in disregard of other essential principles. We do not feel at liberty to adopt any one principle as the sole guide of our decisions and to carry it out to extreme and dangerous re sults regardless of other great principles of justice and of law so firmly established by reason and precedent. We are now considering the question of damages resulting from the breach of a public duty by a quasi public corporation. How far this principle may in the future be extended to other corporations and to other circumstances we cannot tell, and in the absence of any matter be fore us involving its further consideration, we have neither the right nor the wish to limit nor extend its application as a pure matter of legal specula tion." The court reviews at length its prior de cisions upon this point, and calls attention to the significant fact that it is the growing tendency of judicial opinion to allow damages for mental suf fering even when disconnected with any physical suffering. In the case of Osman v. Leech, 135 N. C. 628, 47 S. E. 811, the doctrine was extended to a case of libel. In Texas recovery has been had for negligence in transmitting a telegram for bidding a county clerk to issue a marriage license owing to the fact that the girl was under age. Here the plaintiff was allowed to recover from the telegraph company damages for the loss of his daughter's services up to the age of eighteen and also for the mental distress involved. Much stress is also laid upon the Texas case of Missouri Pac. R. Co. v. Kaiser, 18 S. W. 303, where a girl sixteen years of age, accompanied only by a girl com panion, was ejected from the train at a small town, where she was a stranger, and where she remained an hour before she was discovered by friends. The recent New York case of Gillespie